United States v. Harvey ( 2024 )

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Rodney D. HARVEY, Hospital Corpsman First Class
United States Navy, Appellant
No. 23-0239
Crim. App. No. 202200040
Argued April 17, 2024—Decided September 6, 2024
Military Judges: Ann K. Minami (arraignment)
and Matthew R. Brower (trial)
For Appellant: Lieutenant Christopher B. Dempsey,
JAGC, USN (argued).
For Appellee: Lieutenant Commander James P. Wu
Zhu, JAGC, USN (argued); Colonel Joseph M. Jen-
nings, USMC, Lieutenant Colonel James A. Burkart,
USMC, and Brian K. Keller, Esq. (on brief).
Amicus Curiae in Support of Neither Party: James
A. Young, Esq. (on brief).
Judge MAGGS delivered the opinion of the Court,
in which Chief Judge OHLSON, Judge SPARKS,
Judge HARDY, and Judge JOHNSON joined.
_______________
United States v. Harvey, No. 23-0239/NA
Opinion of the Court
Judge MAGGS delivered the opinion of the Court.
A general court-martial with officer and enlisted mem-
bers found Appellant guilty, contrary to his plea, of one
specification of indecent exposure in violation of Article
120c, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 920c (2018). The United States Navy-Marine Corps Court
of Criminal Appeals (NMCCA) affirmed, holding inter alia
that the evidence was factually sufficient. United States v.
Harvey, 83 M.J. 685, 693-94 (N-M. Ct. Crim. App. 2023). In
so doing, the NMCCA applied the recently amended stand-
ards for factual sufficiency review in Article 66(d)(1)(B),
UCMJ, 10 U.S.C. § 866(d)(1)(B) (Supp. III 2019-2022). 1 Id.
at 693. We granted review to decide whether the NMCCA
correctly applied these new standards. United States v.
Harvey, 84 M.J. 262 (C.A.A.F. 2024) (order granting re-
view). For reasons that we explain below, we set aside the
NMCCA’s decision and remand the case for a new factual
sufficiency review in accordance with this opinion.
I. Background
The specification at issue in this case alleged that Ap-
pellant, “[o]n active duty, did, at or near Bremerton, Wash-
ington, on or about 28 April 2021, intentionally expose his
genitalia in an indecent manner, to wit: exposing his penis
to C.E. in a public parking lot.” At trial, the principal evi-
dence against Appellant came from C.E. She testified that
after interacting with Appellant in a gym that they both
frequented, she went to her car in the gym’s parking lot,
and that while she was inside the car, Appellant exposed
himself by putting his erect penis on one of the car’s win-
dowsills. A security camera showed that Appellant and
C.E. were in the parking lot around the time of the alleged
incident. No relevant DNA evidence was found on C.E.’s
car. The court-martial found Appellant guilty of indecent
exposure and not guilty of two other charges.
1 Congress amended Article 66(d), UCMJ, in the William M.
(Mac) Thornberry National Defense Authorization Act for Fiscal
Year 2021, Pub. L. No. 116-283, § 542, 134 Stat. 3388, 3611.
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Opinion of the Court
On appeal, the NMCCA held that the evidence was fac-
tually sufficient to support the finding of guilty under the
new standards set out in Article 66(d)(1)(B), UCMJ. Har-
vey, 83 M.J. at 693. Appellant seeks review in this Court,
arguing that the NMCCA misconstrued and therefore mis-
applied the amended Article 66(d)(1)(B), UCMJ. Appellant
then asks this Court to reverse the NMCCA’s decision and
to return the case for further analysis under a correct un-
derstanding of the amended statute.
II. Standards of Review
This Court may review whether a Court of Criminal Ap-
peals (CCA) applied “correct legal principles” to a factual
sufficiency review. United States v. Thompson, 83 M.J. 1, 4
(C.A.A.F. 2022) (quoting United States v. Clark, 75 M.J.
298, 300 (C.A.A.F. 2016)). This Court reviews de novo a
CCA’s interpretation of a statute. United States v. Kohlbek,
78 M.J. 326, 330-31 (C.A.A.F. 2019). And “when the record
reveals that a CCA misunderstood the law, this Court re-
mands for another factual sufficiency review under correct
legal principles.” Thompson, 83 M.J. at 4.
III. Analysis
Prior to its recent amendment, Article 66(d)(1), UCMJ,
authorized the CCAs to conduct factual sufficiency review
by providing:
In any case before the Court of Criminal Appeals
under subsection (b), the Court may act only with
respect to the findings and sentence as entered
into the record under section 860c of this title (ar-
ticle 60c). The Court may affirm only such find-
ings of guilty, and the sentence or such part or
amount of the sentence, as the Court finds correct
in law and fact and determines, on the basis of the
entire record, should be approved. In considering
the record, the Court may weigh the evidence,
judge the credibility of witnesses, and determine
controverted questions of fact, recognizing that
the trial court saw and heard the witnesses.
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Opinion of the Court
10 U.S.C. § 866(d)(1) (2018). Authority to conduct factual
sufficiency review now appears in amended Article
66(d)(1)(B), UCMJ, which provides:
(B) Factual Sufficiency Review.—(i) In an ap-
peal of a finding of guilty under subsection (b), the
Court may consider whether the finding is correct
in fact upon request of the accused if the accused
makes a specific showing of a deficiency in proof.
(ii) After an accused has made such a showing,
the Court may weigh the evidence and determine
controverted questions of fact subject to—
(I) appropriate deference to the fact that
the trial court saw and heard the witnesses
and other evidence; and
(II) appropriate deference to findings of
fact entered into the record by the military
judge.
(iii) If, as a result of the review conducted un-
der clause (ii), the Court is clearly convinced that
the finding of guilty was against the weight of the
evidence, the Court may dismiss, set aside, or
modify the finding, or affirm a lesser finding.
10 U.S.C. § 866(d)(1)(B) (Supp. III 2019-2022). The
NMCCA’s opinion and the briefs filed in this case address
the meaning of several key parts of this new provision.
A. The Trigger for Review in Article 66(d)(1)(B)(i), UCMJ
This Court held in numerous cases that the former Ar-
ticle 66(d)(1), UCMJ, required CCAs to conduct a de novo
review of the factual sufficiency of the evidence in every
case. See, e.g., Thompson, 83 M.J. at 4; United States v.
Pease, 75 M.J. 180, 184 (C.A.A.F. 2016); United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). In this case,
however, the NMCCA concluded that the words “upon re-
quest of the accused if the accused makes a specific show-
ing of a deficiency in proof” in amended Article
66(d)(1)(B)(i), UCMJ, have eliminated a CCA’s “duty, and
power, to review a conviction for factual sufficiency absent
an appellant (1) asserting an assignment of error, and (2)
showing a specific deficiency in proof.” Harvey, 83 M.J. at
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Opinion of the Court
691. We agree with the NMCCA’s conclusion on this point.
If the two express trigger conditions (i.e., an assertion of an
error and a showing of a deficiency) are not met, then noth-
ing in amended Article 66, UCMJ, either requires or allows
a CCA to review the factual sufficiency of the evidence. Ac-
cordingly, our decisions in Thompson, Pease, Washington,
and other cases holding that a factual sufficiency review is
always required have been superseded by this amended
statute.
The briefs filed in this case have also addressed two re-
lated questions about the trigger for review in Article
66(d)(1)(B)(i), UCMJ. The first issue, discussed at length
by the parties and amicus curiae, is whether a CCA has
discretion not to conduct a factual sufficiency review even
if the trigger conditions are met. However, because the
NMCCA actually conducted a factual sufficiency review of
the evidence in this case, we need not decide this issue in
this appeal. The second issue concerns the meaning of the
phrase “specific showing of a deficiency in proof” in Article
66(d)(1)(B)(i), UCMJ. The NMCCA and the parties have
advanced notably different views on this question. Again,
however, we need not address this issue here because the
NMCCA and both parties agree that Appellant met his bur-
den to make a specific showing of a deficiency in proof in
this case.
B. Standard of Review Under
Article 66(d)(1)(B)(ii), UCMJ
The former Article 66(d)(1), UCMJ, required a CCA, in
conducting a factual sufficiency review, to “weigh the evi-
dence . . . recognizing that the trial court saw and heard
the witnesses.” 10 U.S.C. § 866(d)(1) (2018). In Washing-
ton, the Court clarified that “[s]uch a review involves a
fresh, impartial look at the evidence, giving no deference to
the decision of the trial court on factual sufficiency beyond
the admonition in Article 66(c), UCMJ, to take into account
the fact that the trial court saw and heard the witnesses.”
57 M.J. at 399.
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Opinion of the Court
Amended Article 66(d)(1)(B)(ii), UCMJ, now directs a
CCA to “weigh the evidence and determine controverted
questions of fact.” This power is subject, in part, to Article
66(d)(1)(B)(ii)(I), UCMJ, which requires “appropriate def-
erence to the fact that the trial court saw and heard the
witnesses and other evidence.” The amended language dif-
fers from the prior version in at least two significant re-
spects. First, the amended article replaces the word “recog-
nizing” with the words “subject to . . . appropriate deference
to the fact.” Second, the amended article refers to “wit-
nesses and other evidence” while the prior version referred
only to “witnesses.”
The NMCCA and the parties disagree about the impact
of these statutory changes. The NMCCA concluded that
these changes impose a “higher standard” than the former
version’s de novo requirement, but this change in review
“does not mean that this Court can no longer make any
credibility determinations of witnesses.” 83 M.J. at 692. In
contrast, the Government asserts that the amendment
eliminated de novo review and created a new standard in
which a CCA can no longer judge the credibility of
witnesses but instead must defer to the trial factfinder
with respect to all evidence. Appellant contends that the
standard of “review remains de novo with a requirement
for ‘appropriate deference’ to the factfinder’s evidentiary
findings.”
Having considered all these views, we construe the re-
quirement of “appropriate deference” when a CCA
“weigh[s] the evidence and determine[s] controverted ques-
tions of fact” to imply that the degree of deference will de-
pend on the nature of the evidence at issue. We reach this
conclusion because Article 66(d)(1)(B)(ii)(I), UCMJ, now
addresses not just the testimony of witnesses but also all
other evidence. For example, a CCA might determine that
the appropriate deference required for a court-martial’s as-
sessment of the testimony of a fact witness, whose credibil-
ity was at issue, is high because the CCA judges could not
see the witness testify. In contrast, when the CCA can as-
sess documents, videos, and other objective evidence just
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Opinion of the Court
as well as the court-martial, the CCA might determine that
the appropriate deference required is low. The statute af-
fords the CCA discretion to determine what level of defer-
ence is appropriate, and we will review a CCA’s decision
only for an abuse of discretion. 2
C. Action Under Article 66(d)(1)(B)(iii), UCMJ
Amended Article 66(d)(1)(B)(iii), UCMJ, states the next
step for the CCA: “If, as a result of the review conducted
under clause (ii), the Court is clearly convinced that the
finding of guilty was against the weight of the evidence, the
Court may dismiss, set aside, or modify the finding, or af-
firm a lesser finding.” We refer to the first half of this pro-
vision (i.e., “[i]f, as a result of the review conducted under
clause (ii), the Court is clearly convinced that the finding
of guilty was against the weight of the evidence”) as the
“predicate clause” because it states the condition under
which a CCA may take an action with respect to the find-
ings. We refer to the second half of this provision (i.e., “the
Court may dismiss, set aside, or modify the finding, or af-
firm a lesser finding”) as the “action-authorizing clause” be-
cause it lists the actions that a CCA may take if the predi-
cate is satisfied.
The predicate clause uses the phrase “against the
weight of the evidence.” Appellant notes that Black’s Law
Dictionary defines this phrase to mean “not sufficiently
supported by the evidence in the record.” Against the
Weight of the Evidence, Black’s Law Dictionary (11th ed.
2019). Thus, Appellant asserts that a CCA is authorized to
act (i.e., dismiss, set aside, modify, or affirm a lesser find-
ing) if “the finding of guilty was ‘not sufficiently supported
by the evidence’ presented at trial (i.e., not supported be-
yond a reasonable doubt).” The Government, in contrast,
asserts that “weight of the evidence” refers to a quantum
2 We note that Article 66(d)(1)(B)(ii)(II), UCMJ, also requires
that the CCAs give “appropriate deference to findings of fact en-
tered into the record by the military judge.” Appellant asserts
that this provision is not at issue in this case and does not rely
on it. Accordingly, we express no opinion on its meaning.
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Opinion of the Court
of proof. In its view, “weight of the evidence” is to be
“equated with a preponderance of the evidence—a far lower
burden of proof than is required for conviction beyond a
reasonable doubt.” Accordingly, the Government’s view is
that a CCA can act with respect to the finding (i.e., dismiss,
set aside, modify, or affirm a lesser finding) only if the CCA
concludes that the finding of guilty is not supported by a
preponderance of the evidence.
We generally agree with the position of Appellant. We
do not read the phrase “weight of the evidence” as an alter-
ation of the necessary quantum of proof to sustain a finding
of guilty because the amended statute does not explicitly
alter the quantum of proof required. In our view, the quan-
tum of proof necessary to sustain a finding of guilty during
a factual sufficiency review is “proof beyond a reasonable
doubt,” the same as the quantum of proof necessary to find
an accused guilty at trial. We reach this conclusion by read-
ing the predicate clause in subsection (B)(iii) in the light of
our interpretation of subsection (B)(ii). Our reasoning is as
follows: Factual sufficiency review occurs only after a
court-martial has already weighed the evidence at trial and
found that the appellant was guilty beyond a reasonable
doubt. Subsection (B)(ii) directs the CCA to conduct a new
weighing of the evidence, giving appropriate deference to
the court-martial. Because the CCA does not have to give
complete deference to the court-martial, as discussed
above, the CCA, during a factual sufficiency review in a
particular case, might weigh the evidence differently from
how the court-martial weighed the evidence. Accordingly,
when the predicate clause in subsection (B)(iii) refers to the
“weight of the evidence,” we understand it to mean the
weight of the evidence as the CCA has just weighed it under
subsection (B)(ii). The phrase, so read, says nothing about,
and therefore does not alter, the quantum of proof neces-
sary to sustain a finding of guilty.
We now turn to the meaning of the words “clearly con-
vinced” in the predicate clause. Appellant argues that this
phrase, like “weight of the evidence,” does not change the
necessary quantum of proof. For example, the words do not
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Opinion of the Court
substitute a “clear and convincing evidence” standard for
the proof beyond a reasonable doubt standard. Instead, Ap-
pellant asserts that the phrase refers to a “state of confi-
dence.” The Government does not provide a clear alterna-
tive argument. We agree with Appellant. Accordingly, for a
CCA to be “clearly convinced that the finding of guilty was
against the weight of the evidence,” two requirements must
be met. First, the CCA must decide that the evidence, as
the CCA has weighed it, does not prove that the appellant
is guilty beyond a reasonable doubt. Second, the CCA must
be clearly convinced of the correctness of this decision.
In reaching this conclusion, we have departed from the
NMCCA’s understanding of Article 66(d)(1)(B)(iii), UCMJ.
The NMCCA determined that this provision creates “a re-
buttable presumption that in reviewing a conviction, a
court of criminal appeals presumes that an appellant is, in
fact, guilty.” 83 M.J. at 693. This view is not consistent with
our interpretation above.
Finally, if the predicate clause of subsection (B)(iii) is
satisfied, then the action-authorizing clause states that the
CCA “may dismiss, set aside, or modify the finding, or af-
firm a lesser finding.” The parties here do not dispute the
meaning of these terms and, therefore, we express no opin-
ion about them.
IV. Prejudice
The Government argues that minor interpretive differ-
ences are not enough to cause prejudice to Appellant and
that we therefore should still affirm the NMCCA. However,
we decide that it is proper to remand the case to the
NMCCA so that it may apply the amended statute as we
have interpreted it. In so doing, we express no opinion on
whether the NMCCA should or should not find the evi-
dence in this case to be factually sufficient. Thus, we do not
reach the question of prejudice.
V. Conclusion
The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is set aside. The record of trial
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Opinion of the Court
is returned to the Judge Advocate General of the Navy for
remand to the Navy-Marine Corps Court of Criminal Ap-
peals for a new factual sufficiency review, consistent with
this opinion, under Article 66, Uniform Code of Military
Justice, 10 U.S.C. § 866 (Supp. III 2019-2022).
10