United States v. Mellette ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, STEWART, and HOUTZ
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Wendell E. MELLETTE, Jr.
Electrician’s Mate (Nuclear) First Class (E-6), U.S. Navy
Appellant
No. 201900305
Decided: 14 May 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Warren A. Record
Sentence adjudged 16 August 2019 by a general court-martial con-
vened at Naval Air Station Jacksonville, Florida, consisting of officer
and enlisted members. Sentence in the Entry of Judgment: confine-
ment for five years and a dishonorable discharge.
For Appellant:
Lieutenant Gregory R. Hargis, JAGC, USN
Lieutenant Michael W. Wester, JAGC, USN
For Appellee:
Lieutenant Commander Jeffrey S. Marden, JAGC, USN
Major Kerry E. Friedewald, USMC
Senior Judge GASTON delivered the opinion of the Court, in which
Judges STEWART and HOUTZ joined.
United States v. Mellette, NMCCA No. 201900305
Opinion of the Court
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
GASTON, Senior Judge:
Appellant was convicted, contrary to his plea, of sexual abuse of a child in
violation of Article 120b, Uniform Code of Military Justice [UCMJ], 10 U.S.C.
§ 920b (2012), for committing sexual contact upon his 15-year-old sister-in-
law.
He asserts six assignments of error [AOEs], which we renumber as fol-
lows: (1) the military judge abused his discretion by denying a Defense
motion for in camera review and production of the victim’s mental health
diagnoses, treatment, and prescribed medications; (2) the military judge
abused his discretion by allowing the Government to admit expert testimony
that Appellant fit the profile of a perpetrator who grooms children for sex;
(3) the evidence is legally and factually insufficient to support his conviction;
(4) the military judge committed plain error by allowing the victim to recom-
mend a specific sentence in her unsworn victim impact statement; (5) the
record of trial is incomplete because the military judge failed to attach four
enclosures of a Defense motion; 1 and (6) the findings and sentence should be
set aside under the cumulative error doctrine.
We find merit in Appellant’s first, second, and fourth AOEs, order some of
the language stricken from the specification, affirm the finding as to the
remaining language, and reassess the sentence.
I. BACKGROUND
In August 2013, Stacy, 2 the 15-year-old sister of Appellant’s then-wife,
Ms. Mitchell, underwent a week of inpatient mental health treatment for
ongoing depression and anxiety, which had resulted in her cutting herself.
Upon discharge, she was prescribed Prozac, continued receiving professional
1 As we have granted the Government’s motion to attach the missing enclosures
to the record, we find this AOE to be without merit. See United States v. Matias, 25
M.J. 356, 363 (C.M.A. 1987).
2 All names in this opinion, other than those of Appellant, the judges, and coun-
sel, are pseudonyms.
2
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Opinion of the Court
counseling for about a year, and remained on Prozac and other medications,
the side effects of which included causing her nightmares.
A couple of months after Stacy’s discharge from the mental health facility,
Appellant started taking on a more big-brotherly role toward her, having one-
on-one conversations with her, and taking her on rides in his truck to get ice
cream or run errands. During these rides Appellant began placing his hand
on Stacy’s thigh and her upper back between her shoulders, and on one
occasion slid his hand down and undid her bra through her shirt. On an
occasion in the home where they both lived with Ms. Mitchell and Stacy’s
parents, he asked Stacy to walk over to look at something on his computer or
phone and then touched her back, thigh, and buttocks.
When Appellant deployed on his submarine from February to April 2014,
Stacy sent him provocative emails telling him things like “when you were
touching me, I wanted more” 3 and asking him what he would think if she told
him she wanted “to f[***]” him. 4 Stacy’s emails were intercepted by the
submarine’s email monitoring system, and Appellant was confronted about
them by his chain of command. Appellant explained that the emails were
from his wife’s little sister, that she was infatuated with him, and that the
comments related to him innocently placing his hand on her shoulder. His
command had him email Stacy instructing her to stop emailing him, and he
also sent an email to Ms. Mitchell informing her about the situation.
Nevertheless, Appellant told a friend and colleague aboard the submarine
that he was contemplating doing what Stacy’s email suggested—i.e., having
sex with her—and at some point after he returned from deployment, he
resumed his one-on-one interactions with Stacy, which became more overtly
sexual. He kissed her; touched her thighs, buttocks, and vaginal area; com-
mented on her buttocks and the size of her breasts; and asked, coarsely,
whether she was aroused. Eventually, he began having vaginal intercourse
with her, and did so on a number of occasions.
In mid-February 2015, Ms. Mitchell caught Appellant kissing Stacy.
When confronted, Appellant denied they were having sex. Around this time,
the local Department of Children and Family Services [DCF] sent someone to
Stacy’s house to investigate a report of an inappropriate relationship made by
Stacy’s boyfriend, whom Stacy had told, along with her two closest female
3 Pros. Ex. 9.
4 Pros. Ex. 6.
3
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Opinion of the Court
friends, about her relationship with Appellant. When questioned by DCF,
Stacy denied anything had happened between her and Appellant.
Appellant and Ms. Mitchell separated soon after his relationship with
Stacy came to light, and they divorced in 2016. Custody of their daughter,
Christine, was awarded to Ms. Mitchell with visitation rights to Appellant. In
2018, Appellant successfully petitioned for a modification of the custody
arrangement to enable Christine to visit him in Guam, where he was then
stationed. When Ms. Mitchell subsequently refused to allow Christine to be
picked up for a scheduled visitation per the custody arrangement, Appellant
filed for Ms. Mitchell to be held in contempt of court.
In response, Ms. Mitchell went with her (and Stacy’s) mother to Appel-
lant’s commanding officer and reported Appellant’s inappropriate relation-
ship with Stacy from several years before. Stacy’s mother spoke to Stacy
about what had happened between her and Appellant and helped Stacy
reconstruct the timeline of events. At her mother’s urging, Stacy agreed to be
interviewed by the Naval Criminal Investigative Service [NCIS] in June
2018. During the interview, Stacy told NCIS that Appellant had committed
the sexual conduct with her when she was still 15 years old, but admitted she
had “always been horrible with remembering times and dates.” 5 She said she
did not report what happened sooner because Appellant had told her not to
and she was scared of him. Stacy later gave a civil deposition in April 2019 in
connection with Appellant and Ms. Mitchell’s custody dispute over Christine.
When asked during the deposition about her sexual interactions with Appel-
lant, Stacy stated that she was not sure of the dates or specific timeframes,
but that the touching occurred prior to the sexual intercourse.
The timing of the sexual conduct in relation to Stacy’s 16th birthday in
mid-July 2014 was a central issue at Appellant’s court-martial, as both the
offenses charged against him—sexual abuse of a child and sexual assault of a
child—required the Government to prove beyond a reasonable doubt that
Stacy was under the age of 16 years at the time of the offense. Appellant’s
friend from the submarine testified that Appellant admitted having sexual
intercourse with Stacy, but believed this disclosure did not occur until late-
July or August 2014. Appellant admitted during a recorded telephone conver-
sation with Stacy’s father that he had sex with Stacy multiple times, but
maintained it did not happen until after her 16th birthday. Stacy testified
she had trouble remembering dates and times, and could “remember things
from a couple of weeks ago but not a couple of years ago,” but she was “very
5 App. Ex. XXXII at 29.
4
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sure” or “100 percent sure” that Appellant touched her in a sexual way and
started having sexual intercourse with her when she was 15 years old. 6 She
testified she was sure of this because the first time Appellant had sexual
intercourse with her was when Ms. Mitchell was still pregnant with Chris-
tine, who was born in June 2014, a month prior to Stacy’s 16th birthday.
The members convicted Appellant of sexual abuse of a child by touching
Stacy on “divers,” or multiple, occasions with an intent to gratify his sexual
desire, but acquitted him of sexual assault of a child by having vaginal sex
with her.
II. DISCUSSION
A. In Camera Review and Production of Mental Health Records
Appellant asserts the military judge erred in denying his pretrial motion
for in camera review and production of Stacy’s mental health diagnoses,
treatment, and prescribed medications. We review the denial of such a
motion for an abuse of discretion. United States v. Chisum, 77 M.J. 176, 179
(C.A.A.F. 2018). A military judge abuses his discretion when he (1) predicates
his ruling on findings of fact that are not supported by the evidence of record;
(2) uses incorrect legal principles; (3) applies correct legal principles to the
facts in a way that is clearly unreasonable, or (4) fails to consider important
facts. United States v. Commisso, 76 M.F. 315, 321 (C.A.A.F. 2017) (citations
omitted). We review a military judge’s conclusions of law de novo. United
States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004).
Generally, the parties to a court-martial “shall have equal opportunity to
obtain witnesses and other evidence in accordance with such regulations as
the President may prescribe.” UCMJ art. 46(a). The rules prescribed by the
President provide that “[e]ach party is entitled to the production of evidence
which is relevant and necessary.” Rule for Courts-Martial [RCM] 703(f)(1).
Evidence is relevant if it has any tendency to make a fact of consequence in
determining the action more or less probable than it would be without the
evidence. Military Rule of Evidence [MRE] 401. “Relevant evidence is neces-
sary when it is not cumulative and when it would contribute to a party’s
presentation of the case in some positive way on a matter in issue.” RCM
703(f), Discussion.
6 Rawle at 460, 481.
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Relevant and necessary evidence can be excepted from production or dis-
closure by a proper claim of privilege. MRE 501. The privilege at issue here—
the psychotherapist-patient privilege—provides:
A patient has a privilege to refuse to disclose and to prevent
any other person from disclosing a confidential communication
made between the patient and a psychotherapist or an assis-
tant to the psychotherapist, in a case arising under the
[UCMJ], if such communication was made for the purpose of
facilitating diagnosis or treatment of the patient’s mental or
emotional condition.
MRE 513(a). The rule provides that communications are confidential if “not
intended to be disclosed to third persons other than those to whom disclosure
is in furtherance of the rendition of professional services to the patient or
those reasonably necessary for such transmission of the communication.”
MRE 513(b)(4).
Before ordering such privileged material produced even for in camera re-
view, the military judge must find the moving party has demonstrated four
things by a preponderance of the evidence:
(A) a specific, credible factual basis demonstrating a rea-
sonable likelihood that the records or communications would
contain or lead to the discovery of evidence admissible under
an exception to the privilege;
(B) that the requested information meets one of the enu-
merated exceptions under subsection (d) of [MRE 513];
(C) that the information sought is not merely cumulative of
other information available; and
(D) that the party made reasonable efforts to obtain the
same or substantially similar information through non-
privileged sources.
MRE 513(e)(3). If the military judge determines each of the above factors is
met except for one of the rule’s enumerated exceptions, the military judge
must then determine whether in camera review is constitutionally required,
and if so, take further action as necessary. J.M. v. Payton-O’Brien, 76 M.J.
782, 789-90 (N-M. Ct. Crim. App. 2017).
Here, after openly discussing with family members and NCIS and during
her civil deposition her mental health diagnoses and treatment, including her
recollection of her prescribed medications, Stacy asserted her psychothera-
pist-patient privilege to prevent Appellant’s trial defense counsel from access-
ing this information in her mental health records. The Defense then moved
6
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Opinion of the Court
for in camera review and production of the information, arguing that (1) the
requested information was not privileged because the confidential communi-
cation that the psychotherapist-patient privilege protects does not include
diagnosis and treatment information; 7 (2) Stacy waived any privilege by
repeatedly discussing her mental health issues with various third parties;
and (3) even if not waived, the privilege should yield to in camera review and
production of the requested information as constitutionally required. A
Defense expert opined that based on the information and symptoms Stacy
had already revealed, Stacy could have Borderline Personality Disorder,
which could further manifest in attention-seeking and manipulative behav-
iors, particularly when associated with fear of abandonment. The Defense
argued that information about Stacy’s diagnoses and treatment was relevant
to the issues of suggestion, memory, and truthfulness, which all impacted her
credibility as the only Government eyewitness to the charged offenses. It
argued her medication list was important to assessing any additional side
effects or adverse interactions among her medications, as it related to
memory issues associated with Stacy’s allegations of misconduct several
years before.
The military judge denied the Defense motion. He concluded that the rec-
ords containing the information were privileged, that the Defense had not
shown the requested information was “reasonably segregable [sic]” 8 from the
privileged communications, and that waiver applied only to the information
Stacy had already disclosed. He concluded that the Defense had failed to
meet its burden of demonstrating that in camera review or production of the
requested information was required. He found that by her own admission
Stacy had been diagnosed with depression, anxiety, and self-harm, and that
the Defense offered only mere speculation of other diagnoses. He found that
the information sought was cumulative because Appellant already knew of
Stacy’s diagnoses and treatment from her previous disclosures. Finally, he
concluded the Defense had failed to show why the requested information was
relevant and necessary under RCM 703, as opposed to a mere “fishing expedi-
tion.” 9
7 The Defense clarified it was seeking the diagnosis and treatment plan, “not . . .
specific notes from any counseling session.” R. at 53.
8 Rawle at 70.
9 App. Ex. V at 7.
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1. What information is covered by the psychotherapist-patient privilege
As an initial matter, we must determine whether the mental health in-
formation requested by the Defense—i.e., diagnoses and treatment, including
prescribed medications—is protected from disclosure by the psychotherapist-
patient privilege. Both parties argue the military judge erred in concluding
such information was privileged. We disagree.
“[C]onstruction of a statute is a question of law we review de novo.” Unit-
ed States v. Kelly, 77 M.J. 404, 406 (C.A.A.F. 2018) (citation omitted). Where
a privilege is codified in the evidentiary rules, ordinary principles of statutory
construction control, with the caveat that “privileges should be construed
narrowly, as they run contrary to a court’s truth-seeking function.” United
States v. Custis, 65 M.J. 366, 369 (C.A.A.F. 2007) (quoting Trammel v. United
States, 445 U.S. 40, 50-51 (1980)). “[W]hen the statute’s language is plain, the
sole function of the courts—at least where the disposition required by the text
is not absurd—is to enforce it according to its terms.” Custis, 65 M.J. at 370
(quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530
U.S. 1, 6 (2000)).
The psychotherapist-patient privilege protects against the disclosure of
“confidential communication made between the patient and a psychotherapist
or an assistant to the psychotherapist . . . if such communication was made
for the purpose of facilitating diagnosis or treatment of the patient’s mental
or emotional condition.” MRE 513(a) (emphasis added). Under a plain read-
ing of this language, the privilege protects communications “between” the
patient and the psychotherapist—meaning communication from the patient
to the psychotherapist and communication from the psychotherapist to the
patient—that are made for the purpose of facilitating diagnosis and treat-
ment of the patient’s condition. In other words, the protection covers not only
the patient’s description of her symptoms, but also the psychotherapist’s
rendering of a diagnosis and treatment plan, based on those symptoms, back
to the patient.
This language is very similar to the language used in the attorney-client
privilege, which protects confidential communications “between” the client
and the lawyer that are “made for the purpose of facilitating the rendition of
professional legal services to the client.” MRE 502. 10 “Professional legal
10 By contrast, the language in the privilege covering communications to clergy
protects only “confidential communication by the person to a clergyman.” MRE 503
(emphasis added).
8
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services” include, at a minimum, providing legal advice. It is beyond cavil
that the attorney-client privilege covers not only the description of the issue
from the client to the attorney, but also the diagnosis—i.e., the legal advice—
from the attorney to the client. For this reason, we disagree with our sister
court’s view that the psychotherapist-patient privilege “extends to statements
and records that reveal the substance of conversations that may have been
for the ‘purpose of facilitating diagnosis or treatment,’ but not to the diagno-
sis or treatment itself.” United States v. Rodriguez, No. 20180138, 2019 CCA
LEXIS 387, at *8 (A. Ct. Crim. App. Oct. 1, 2019) (unpublished), pet. for rev.
denied, 79 M.J. 430 (C.A.A.F. 2020) (citing H.V. v. Kitchen, 75 M.J. 717, 721
(C. G. Ct. Crim. App. 2016) (Bruce, J., dissenting)). Interpreting the psycho-
therapist-patient privilege in this manner not only ignores its use of the word
“between” as a protection for two-way communications, but would be akin to
finding the attorney-client privilege protects the client’s statements made for
the purpose of facilitating the provision of legal advice, but not the legal
advice itself. Thus, we reject this interpretation because it both ignores the
plain language of the rule and leads to absurd results.
Although we should construe privileges narrowly, such an overly narrow
interpretation of what the psychotherapist-patient privilege covers would
also undermine the purpose of the privilege. The psychotherapist-patient
privilege came into existence as a result of the Supreme Court’s decision in
Jaffee v. Redmond, which recognized the societal interest in a mentally
healthy populace and found that “confidentiality is a sine qua non for success-
ful psychiatric treatment.” 518 U.S. 1, 10 (1996). The Court further recog-
nized that the patient’s expectation in this regard is vitally important, since
the “promise of confidentiality would have little value if the patient were
aware that the privilege would not be honored in a federal court.” Id. at 13.
Consequently, we have previously found that in codifying the privilege in
MRE 513 in the wake of Jaffee, “[t]he policy decision of Congress and the
President is clear: the psychotherapist-patient privilege should be protected
to the greatest extent possible.” Payton-O’Brien, 76 M.J. at 787. 11 To inter-
11 See also Dep’t of Def. Instr. 6490.08, Command Notification Requirements to
Dispel Stigma in Providing Mental Health Care to [Servicemembers], para. 3 (Aug.
17, 2011) (requiring that, “to dispel the stigma of seeking mental health care,”
Department of Defense healthcare providers “shall follow a presumption that they
are not to notify a [servicemember’s] commander when the [servicemember] obtains
mental health care,” and where notification is required, “shall provide the minimum
amount of information to the commander concerned as required to satisfy the
purposes of the disclosure”).
9
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Opinion of the Court
pret the privilege as covering only the patient’s description of her symptoms,
but not the psychotherapist’s diagnosis and treatment of her condition, would
deter patients from seeking mental health treatment in precisely the way
Jaffee sought to avoid.
For the same reason we hold that, insofar as it pertains to mental health
treatment, the prescription of medication is also covered by the privilege. The
Coast Guard Court of Criminal Appeals held as much in H.V. v. Kitchen,
pointing out that “diagnoses and the nature of treatment necessarily reflect,
in part, the patient’s confidential communications to the psychotherapist
. . . .” 75 M.J. at 719. We agree. Revealing what psychiatric medication a
patient has been prescribed to treat a diagnosed condition would in many
circumstances suggest, if not reveal, the diagnosis itself. 12 Thus, we find that
as a form of mental health treatment, the prescription of medication falls
within the same concern, noted in Kitchen, that “[t]he privilege would essen-
tially be gutted if a psychotherapist could be ordered to testify about a per-
son’s diagnosis or treatment, over the person’s objection, so long as the
psychotherapist refrained from expressly describing or referring to the
content of any confidential communications.” Kitchen, 75 M.J. at 719 (quoting
Stark v. Hartt Transportation Systems, Inc., 937 F. Supp. 2d 88, 91-92
(D. Me. 2013)).
2. Waiver of the privilege
While we find the military judge correctly construed what information is
covered by the psychotherapist-patient privilege, we hold that he erred in
summarily rejecting the Defense argument that Stacy waived the privilege by
discussing her mental health diagnoses and treatment, including her pre-
scribed medications, with her family, with NCIS, and during her civil deposi-
tion.
A privilege is waived where the holder of the privilege “voluntarily dis-
closes or consents to disclosure of any significant part of the matter or com-
munication under such circumstances that it would be inappropriate to allow
the claim of privilege.” MRE 510(a) (emphasis added). This language is
12 We also find unpersuasive the Rodriguez court’s position that mental health
prescriptions cannot involve “confidential communications” because they are “intend-
ed to be disclosed to a non-psychotherapist third party—the pharmacist who fills it.”
Rodriguez, 2019 CCA LEXIS 387, at *9. Drawing from the language of the rule, we
find that communications from the psychotherapist to a pharmacist to fill prescrip-
tions are “in furtherance of the rendition of professional services to the patient,” and
are therefore protected from further disclosure. MRE 513(b)(4).
10
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Opinion of the Court
plainly broader than the military judge’s interpretation that “even if the
privilege were waived, it would be only as to those matters already dis-
closed.” 13 We also note that “whether a waiver is valid turns on whether the
disclosure was voluntary,” not whether the privilege holder knew the infor-
mation disclosed was privileged or intended to waive the privilege by disclos-
ing it. United States v. Jasper, 72 M.J. 276, 280-81 (C.A.A.F. 2013) (citations
omitted).
Here, Stacy openly discussed her mental health matters with multiple
people on multiple occasions. The inpatient and follow-up treatment she
received occurred immediately prior to and during the timeframe of the
charged offenses, the reporting of which was delayed for a number of years
and eventually occurred in response to a child-custody dispute over Stacy’s
niece. Irrespective of whether Stacy knew the information was privileged or
intended to waive the privilege by discussing it, we find based on the record
before us that her disclosures were voluntary, involved a significant part of
the matters at issue, and occurred under such circumstances that it would be
inappropriate to allow the claim of privilege. 14 Hence, in this regard, we
concur with the parties in concluding the military judge erred in finding the
information requested by the Defense was privileged.
We further find error in the military judge’s conclusion that the requested
information was not subject to production under RCM 703(f). Here, the
Defense sought to confirm Stacy’s stated diagnoses and ascertain whether
there were any other related diagnoses that could impact her credibility. The
Defense also sought to review the list of Stacy’s prescribed medications, not
all of which she could remember the names of, to assess their interactive side
effects and potential for adverse effect on memory in a case involving a delay
in reporting for several years, allegations that Stacy had previously denied,
and a report made under circumstances––revolving around the custody battle
over Christine––giving rise to a strong motive to fabricate at least their
timeframe, if not their substance. Under these circumstances we find clearly
unreasonable the military judge’s conclusion that the requested information
was not relevant and necessary.
13 App. Ex. V at 7.
14 To conclude otherwise would allow a privilege holder to delimit discoverable
evidence to establish advantageous facts and then invoke the privilege to deny the
evaluation of their context, relevance, or truth—thus turning the privilege from a
shield into a sword—a circumstance the waiver rule’s broader language seeks to
avoid.
11
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The military judge expressed concern that the requested information—
diagnoses and treatment, including prescribed medications—was not reason-
ably separable from other information subject to privilege. But this situation
is contemplated by the rule, which not only authorizes the military judge to
conduct an in camera review of the records in which information subject to
production is contained, but also specifically requires that
[a]ny production or disclosure permitted by the military judge
must be narrowly tailored to only the specific records or com-
munications, or portions of such records or communications,
that meet the requirements for one of the enumerated excep-
tions to the privilege . . . and are included in the stated purpose
for which the records or communications are sought . . . .
MRE 513(e)(4) (emphasis added). The purpose of in camera review is to allow
the trial judge to review the records and separate out the information that
should be produced or disclosed from the information that should remain
protected. Accordingly, we hold the military judge erred in not following the
procedures we have previously outlined either to conduct the in camera
review or to take further action as necessary. See Payton-O’Brien, 76 M.J. at
789-90.
3. In camera review and production under MRE 513(e)(3)
Even assuming arguendo that Stacy’s discussions of her mental health
matters did not waive her privilege, we find the military judge abused his
discretion in concluding the Defense had not shown, at the very least, that an
in camera review of the pertinent mental health records was constitutionally
required. We have previously identified several key areas where courts have
overridden privileges in order to protect against the infringement of an
accused’s weighty interests of due process and confrontation: “(1) recantation
or other contradictory conduct by the alleged victim; (2) evidence of behavior-
al, mental, or emotional difficulties of the alleged victim; and (3) the alleged
victim’s inability to accurately perceive, remember, and relate events.”
Payton-O’Brien, 76 M.J. at 789. As we explained, “[t]he second and third
areas, in particular, . . . go to the very essence of witness credibility and
reliability—potential defects in capacity to understand, interpret, and relate
events. Additionally, these areas intersect with the medical community’s
ability to interpret that credibility.” Id. at 789 n.28. 15
15 See also United States v. Reese, 25 M.J. 93, 95 (C.M.A. 1987) (stating that
“[s]ome forms of emotional or mental defects have been held to ‘have high probative
12
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Opinion of the Court
This case involves all of these key areas of concern. After telling friends
about her sexual relationship with Appellant, Stacy denied to local DCF
authorities that anything inappropriate had happened between them. There
is substantial evidence of Stacy’s behavioral, mental, and emotional difficul-
ties, which necessitated not only inpatient treatment but continued follow-on
care, the timing of which was pertinent to both the timeframe and the sub-
stance of the charged offenses. And Stacy repeatedly stated in both formal
and informal settings that she was unable to remember the precise
timeframe of the events in question, which was the crucial issue in the trial.
The information requested by the Defense not only bore on these issues,
but under the circumstances of this case was (1) reasonably likely to yield
admissible information, (2) was not cumulative, and (3) was not available
through other non-privileged sources. The military judge found these latter
three requirements were not satisfied based largely on the view that Appel-
lant already knew of Stacy’s diagnoses and treatment from her own disclo-
sures. However, Stacy admitted she was unable to recall all of her
medications, and as the military judge recognized with respect to the infor-
mation she did disclose, “she might have told the truth and she might not
have told the truth.” 16 Given the centrality of Stacy’s testimony to the sub-
stantially delayed allegations, the circumstances under which they were
reported, and the plethora of issues posed by her mental health diagnoses
and treatment, we conclude the military judge’s application of the factors
under MRE 513(e) to the facts of this case constituted an abuse of discretion.
4. Prejudice
Having found error in the denial of the Defense motion, we must deter-
mine whether the error materially prejudiced Appellant’s substantial rights.
Chisum, 77 M.J. at 179. Where an error includes a “constitutionally improper
denial of a defendant’s opportunity to impeach a witness for bias,” we must
find the error harmless beyond a reasonable doubt. Id. For such a review, we
weigh factors including:
the importance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the presence or
value on the issue of credibility . . . a conservative list of [which] would have to
include . . . most or all of the neuroses, . . . alcoholism, drug addiction, and psycho-
pathic personality.’”) (quoting United States v. Lindstrom, 698 F.2d 1154, 1160 (11th
Cir.1983)).
16 Rawle at 70.
13
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absence of evidence corroborating or contradicting the testimo-
ny of the witness on material points, the extent of cross-
examination otherwise permitted, and, of course, the overall
strength of the prosecution’s case.
Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). “A constitu-
tional error is harmless when it appears beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.” Id. at 179
(quoting Mitchell v. Esparza, 540 U.S. 12, 17-18 (2003)). “To say that an error
did not ‘contribute’ to the ensuing verdict” means “to find that error unim-
portant in relation to everything else the jury considered on the issue in
question, as revealed in the record.” Id. at 179 (quoting Yates v. Evatt, 500
U.S. 391, 403 (1991)).
As we noted in Payton-O’Brien, “[i]n these scenarios, serious concerns
may be raised regarding witness credibility—which is of paramount im-
portance—and may very well be case dispositive.” Payton-O’Brien, 76 M.J. at
789. Moreover, “[w]e cannot discount the possibility that the information
contained in [Stacy’s records] may have had an impact on the [D]efense’s trial
strategy.” United States v. Reece, 25 M.J. 93, 95 (C.M.A. 1987).
In this case, there was little dispute that a sexual relationship occurred
between Appellant and his teenage sister-in-law, as Appellant admitted
having vaginal intercourse with her on multiple occasions. The principal
issue at trial was whether the charged acts occurred before or after Stacy’s
16th birthday in mid-July 2014. Stacy testified that the touching offenses
happened on multiple occasions and preceded the vaginal intercourse. Her
testimony on the timing of the conduct was subject to vigorous cross-
examination, which thoroughly revealed the inconsistency of her prior denials
and other statements, the years-long delay of her report, her faulty memory
and the contaminating influence on it by other family members, and a strong
ulterior motive to slant her testimony in favor of aiding her sister’s ongoing
child-custody dispute against Appellant. While the members acquitted
Appellant of sexual assault of a child, they convicted him of sexual abuse of a
child “on divers occasions,” which indicates they found multiple instances of
sexual contact were proven beyond a reasonable doubt.
We find strong corroboration for Stacy’s testimony that the sexual contact
began prior to Appellant’s submarine deployment from February to April
2014—namely, the provocative emails she sent to Appellant, telling him
things like “when you were touching me, I wanted more.” 17 That sexual
17 Pros. Ex. 9.
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Opinion of the Court
contact occurred prior to Appellant’s deployment was also corroborated by the
family’s awareness of Appellant’s one-on-one interactions with Stacy and, at
least to some extent, by Appellant’s admissions to third parties. 18 Thus, the
evidence before the members that sexual contact occurred on at least one
occasion before Stacy’s 16th birthday was both corroborated and strong. With
respect to this pre-deployment sexual contact, after weighing all of the
factors, we conclude that the error is “unimportant in relation to everything
else the jury considered on the issue in question, as revealed in the record,”
and find it harmless beyond a reasonable doubt. Chisum, 77 M.J. at 179.
By contrast, for the alleged sexual contact after Appellant’s deployment,
there was little corroboration for Stacy’s testimony that it occurred prior to
her 16th birthday. As the proof for this contact rested exclusively on Stacy’s
testimony, we find the error may have contributed to the finding in this
regard. Consequently, we find that the words, “on divers occasions,” must be
stricken from the specification of which Appellant was convicted, which we
accomplish in our decretal paragraph below.
B. Admission of Profile Testimony Regarding “Grooming”
Appellant asserts the military judge erred in admitting testimony from
the Government’s forensic psychologist that Appellant fit the profile of a
perpetrator who grooms children for sex. We review a trial court’s decision to
admit expert testimony for abuse of discretion. United States v. Hays, 62 M.J.
158, 165 (C.A.A.F. 2005). “The abuse of discretion standard is a strict one,
calling for more than a mere difference of opinion. The challenged action
must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.”
United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010) (citation and internal
quotation marks omitted).
1. The limits of opinion testimony
A witness qualified as an expert may testify in the form of an opinion or
otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue;
18 In addition to admitting his sexual desire for Stacy to a friend aboard the sub-
marine, Appellant emailed Ms. Mitchell that the statement Stacy emailed him,
“‘when you were touching me, I wanted more,’ could have been simply put as ‘I liked
the back message [sic].’” Pros. Ex. 9.
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Opinion of the Court
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and meth-
ods to the facts of the case.
MRE 702. Under this rule expert testimony about certain aspects of victim
behavior is generally admissible. Experts may, for example, testify “as to
what symptoms are found among children who have suffered sexual abuse
and whether the child-witness has exhibited these symptoms,” or discuss
“various patterns of consistency in the stories of child abuse victims and
compar[e] those patterns with patterns in . . . [the victim’s] story,” so long as
they do not opine as to whether the witness is telling the truth about an
allegation. United States v. Harrison, 31 M.J. 330, 332 (C.M.A. 1990) (cita-
tions and internal quotation marks omitted).
By contrast, “[g]enerally, use of any characteristic ‘profile’ as evidence of
guilt or innocence in criminal trials is improper.” United States v. Banks, 36
M.J. 150, 161 (C.M.A. 1992). “Profile evidence is evidence that presents a
‘characteristic profile’ of an offender, such as a pedophile or child abuser, and
then places the accused’s personal characteristics within that profile as proof
of guilt.” United States v. Traum, 60 M.J. 226, 234 (C.A.A.F. 2004) (citations
omitted). Thus, “the focus is upon using a profile as evidence of the accused’s
guilt or innocence, and not upon using a characteristic profile to support or
attack a witness’s or victim’s credibility or truthfulness.” United States v.
Brooks, 64 M.J. 325, 329 (C.A.A.F. 2007) (emphasis in original).
“[T]he ban on profile evidence exists because this process treads too close-
ly to offering character evidence of an accused in order to prove that the
accused acted in conformity with that evidence on a certain occasion and
committed the criminal activity in question.” Traum, 60 M.J. at 235. The
prohibition thus “is rooted in MRE 404(a)(1) that precludes the prosecution
from introducing character evidence of an accused who has not put his
character at issue.” Banks, 36 M.J. at 161. As “[o]ur system of justice is a
trial on the facts, not a litmus paper test for conformity with any set of
characteristics, factors, or circumstances,” profile evidence can be admitted
“only in narrow and limited circumstances,” to include “as purely background
material to explain sanity issues[,] . . . as an investigative tool to establish
reasonable suspicion[,] . . . [or] in rebuttal when a party ‘opens the door’ by
introducing potentially misleading testimony.” Id. (citations omitted).
Here, the Defense objected to the Government’s intent to elicit testimony
from its expert about “grooming behavior,” which the expert defined as the
“behaviors of a perpetrator of child sexual abuse to solicit the access to and
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Opinion of the Court
compliance of the targeted victim, as well as the manipulation in favor with
the gatekeepers to that child.” 19 The expert opined that Appellant’s one-on-
one interactions with Stacy—spending “private time,” sexually escalating
touching, intimate conversation—were consistent with grooming behavior.
The Government argued admission of the opinion testimony was proper
under MRE 404(b) to prove Appellant’s motive, intent, and scheme to have
sex with Stacy. 20 The Defense argued that allowing such profile testimony
invaded the fact-finding province of the members and was tantamount to
impermissibly opining that Appellant “fit[ ] the profile of an offender.” 21
The military judge overruled the Defense objection, concluding the ex-
pert’s testimony did not amount to profile evidence. Citing principally United
States v. Brooks, 64 M.J. 325 (C.A.A.F. 2007), United States v. Bresnahan, 62
M.J. 137 (C.A.A.F. 2005), and United States v. Huberty, 53 M.J. 369 (C.A.A.F.
2000), he found it was permissible for the expert to testify that the evidence
of Appellant’s behavior was consistent with grooming behavior, so long as the
expert did not opine that Appellant had in fact groomed Stacy, that he was a
child sex abuser, or that child sex abuse occurred. He found such limited
testimony regarding grooming was relevant and admissible as non-profile
evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), United States v. Houser, 36 M.J. 392 (C.M.A. 1993), and MRE 403.
The military judge then allowed the Government to elicit the following
testimony from the expert about “grooming” in its case-in-chief:
- That “instead of focusing on the victim’s side of behaviors, it has to do
with the offender’s side of behaviors.” 22
- That “common patterns of grooming behavior” include cultivating a
special relationship with the targeted victim, sharing special time to-
gether, giving gifts, lowering the child’s inhibitions through innocuous
or “quasi-sexual” touches, and then “escalating towards more progres-
sively sexually explicit conduct.” 23
19 Rawle at 723.
20 As the Government had previously announced, its intention was to use evi-
dence of Appellant’s earlier acts with Stacy “to show a pattern of grooming behavior
. . . leading up to . . . the penetrative act.” R. at 22.
21 Rawle at 730.
22 R. at 773.
23 Rawle at 775.
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Opinion of the Court
- That the evidence adduced at the court-martial revealed “behaviors
that are consistent with common patterns of grooming,” to include Ap-
pellant’s relationship with Stacy, his role as “big brother” to her, the
time he spent alone with her, taking car rides, going for ice cream, and
his progression to more sexualized touching and actions.
The Government then drew from the expert’s testimony in its closing argu-
ment, arguing that in connection with the charged offenses Appellant had
been grooming Stacy. 24
The Government expert’s testimony was thus elicited and used in precise-
ly the way the rule against profile testimony forbids. This was not an in-
stance where, as in Huberty, expert testimony about grooming was used to
explain the victim’s behavior or to rebut issues in this area raised by a
Defense expert. See Huberty, 53 M.J. at 373. Nor was it used as a means of
explaining Stacy’s complicity in the secret relationship with Appellant, thus
supporting her credibility with respect to her delayed allegations. Rather, the
testimony was “admitted for the purpose of showing that Appellant fit the
‘profile’ of a sex abuser.” Id. at 373. It was elicited and used to show that
Appellant’s actions were consistent with patterns of grooming behavior
exhibited by child sex abusers, in order to support the conclusion that he was
guilty of the charged offense of child sexual abuse. The admission of this
testimony was therefore erroneous.
2. Prejudice
Having found error, we test for prejudice. For non-constitutional eviden-
tiary errors, the test for prejudice “is whether the error had a substantial
influence on the findings.” United States v. Kohlbek, 78 M.J. 326, 334
(C.A.A.F. 2019) (internal quotation marks and citation omitted). In conduct-
ing this analysis, we weigh “(1) the strength of the Government’s case, (2) the
strength of the [D]efense case, (3) the materiality of the evidence in question,
and (4) the quality of the evidence in question.” Id. (quoting United States v.
Norman, 74 M.J. 144, 150 (C.A.A.F. 2015)).
Here, given Appellant’s admissions that multiple sexual encounters with
Stacy occurred, the Government’s case was strong except for the timing of the
offenses, which Appellant maintained occurred after Stacy turned 16. Even in
regard to the timing of the offenses, as discussed above, there was strong
corroborating evidence that at least one instance of sexual abuse occurred
24 Rawle at 870-71, 878.
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Opinion of the Court
prior to the Appellant’s deployment in February 2014 and, therefore, prior to
Stacy’s 16th birthday in mid-July 2014. The Defense case on the pre-
deployment contact was weak by comparison, as it was focused principally on
the timing issue, where the Government’s case was weakest. In light of the
evidence admitted, we find the expert testimony in question was not material
to the timing issue for the strong, corroborated claim of pre-deployment
sexual abuse. We therefore conclude the error in its admission did not have a
substantial influence on the findings with respect to that instance, among the
“divers occasions” charged.
On the other hand, we conclude the expert’s testimony was material to
the post-deployment sexual abuse Stacy testified about, because it corrobo-
rated the escalating nature of the sexual contact, which in turn supported
Stacy’s credibility on the issue of whether she was still 15 years old at the
time. We find the quality of the testimony particularly important in this
regard, as it came from an expert and thus lent the imprimatur of a scientific
foundation to the Government’s case. Accordingly, we conclude that Appel-
lant was prejudiced as to any post-deployment sexual abuse and conclude
that must be remedied by striking the words, “on divers occasions,” from the
specification, which we accomplish in our decretal paragraph.
C. Legal and Factual Sufficiency
Appellant asserts the evidence is legally and factually insufficient to sup-
port his conviction. We review such questions de novo. UCMJ art. 66(c);
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
To determine legal sufficiency, we ask whether, “considering the evidence
in the light most favorable to the prosecution, a reasonable fact-finder could
have found all the essential elements beyond a reasonable doubt.” United
States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)). In conducting this analysis, we must “draw every
reasonable inference from the evidence of record in favor of the prosecution.”
United States v. Gutierrez, 74 M.J. 61, 65 (C.A.A.F. 2015) (citation and
internal quotation marks omitted).
In evaluating factual sufficiency, we determine whether, after weighing
the evidence in the record of trial and making allowances for not having
observed the witnesses, we are convinced of the appellant’s guilt beyond a
reasonable doubt. Turner, 25 M.J. at 325 (C.M.A. 1987). In conducting this
unique appellate function, 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
constitutes proof of each required element beyond a reasonable doubt.”
Washington, 57 M.J. at 399. Proof beyond a “[r]easonable doubt, however,
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Opinion of the Court
does not mean the evidence must be free from conflict.” United States v.
Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006).
In order to prove the offense of sexual abuse of a child as charged, the
Government was required to prove beyond a reasonable doubt that (1) Appel-
lant committed sexual contact upon Stacy by intentionally touching, directly
or through the clothing, her buttocks, thighs, hips, and back with his hand;
(2) he did so with the intent to gratify his sexual desire; and (3) at the time
Stacy had not attained the age of 16 years. Manual for Courts-Martial,
United States (2016 ed.), pt. IV, para. 45.b.b.(4)(a).
The Government concedes the proof was lacking for the word, “hips,”
which is not supported by the evidence. After also removing the words, “on
divers occasions,” which we have concluded must be dismissed due to legal
error, we find the remainder of the specification legally and factually suffi-
cient. As discussed above, that Appellant touched Stacy’s back, thighs, and
buttocks for sexual gratification on at least one occasion prior to his deploy-
ment in February 2014 (well before her 16th birthday) was supported by not
only Stacy’s testimony, but also by the provocative emails Stacy sent to
Appellant on his submarine, the family’s knowledge of their one-on-one
interactions, and Appellant’s admissions to third parties. Considering the
evidence in the light most favorable to the Prosecution, we conclude a rea-
sonable fact-finder could have found all the essential elements of this offense
beyond a reasonable doubt. The evidence is thus legally sufficient to support
the conviction. Regarding factual sufficiency, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, we, too, are convinced of Appellant’s guilt beyond a reasonable
doubt.
D. Sentence Reassessment
Having set aside some of the language from the specification of which Ap-
pellant was convicted, we must determine whether we can reassess the
sentence at the appellate level or whether we must remand for the trial court
to do so. We do so by determining: (1) whether there have been dramatic
changes in the penalty landscape or exposure; (2) whether sentencing was by
members or a military judge alone; (3) whether the nature of the remaining
offenses captures the gravamen of the criminal conduct included within the
original offenses and whether significant or aggravating circumstances
addressed at the court-martial remain admissible and relevant to the remain-
ing offenses; and (4) whether the remaining offenses are of the type with
which appellate judges should have the experience and familiarity to reliably
determine what sentence would have been imposed at trial. United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013).
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Opinion of the Court
Here, we determine that we can reassess the sentence. As Appellant re-
mains convicted of one specification of sexual abuse of a child under Article
120b, there has been no change in the penalty landscape or exposure. Howev-
er, excepting the words, “hips” and “on divers occasions,” from the specifica-
tion, while not changing the gravamen of his criminal conduct, does
significantly alter the circumstances of the offenses relevant to sentencing, as
it narrows the finding of criminal conduct to a single occasion. While Appel-
lant was sentenced by members, the specification as modified deals with an
offense of the type with which appellate judges have experience to reliably
determine what sentence would have been imposed at trial. Under these
circumstances, and excluding from our consideration the evidence we have
found was erroneously admitted, we are confident that the sentence the
members would have imposed for the specification as excepted would have
been no less than three years’ confinement and a dishonorable discharge. We
affirm this reassessed sentence in our decretal paragraph.
E. Sentence Recommendation in Unsworn Victim Impact Statement
Appellant asserts the military judge erred in allowing Stacy to recom-
mend a specific sentence. Because there was no objection at trial, we review
for plain error, which occurs when there is an error, it is clear or obvious, and
it results in material prejudice to a substantial right. United States v. Powell,
49 M.J. 460, 463-65 (C.A.A.F. 1998).
“[A] crime victim of an offense of which the accused has been found guilty
has the right to be reasonably heard at the presentencing hearing relating to
that offense.” RCM 1001(c)(1). This right includes the right to make an
unsworn statement including victim impact and matters in mitigation. RCM
1001(c)(3), (5). “[V]ictim impact” includes “any financial, social, psychological,
or medical impact on the crime victim directly relating to or arising from the
offense of which the accused has been found guilty.” RCM 1001(c)(2)(B).
However, the victim’s statement “may not include a recommendation of a
specific sentence.” RCM 1001(c)(3).
During the presentencing hearing, Stacy made an unsworn victim impact
statement in which she described the prolonged period Appellant’s behavior
had impacted her mental health and her relationship with her family. She
concluded by stating, without objection from the Defense:
I ask that as you come to your decision you keep this in mind: I
suffered in silence for five years before circumstances made me
tell the truth of what he had done to me. I think that he needs a
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Opinion of the Court
significant amount of jail time to think about the pain he has
put me through. 25
The trial counsel then argued for a sentence that included five years’ con-
finement. After deliberating an hour and a half, the members awarded a
sentence that included five years’ confinement.
We hold it was error for the military judge to allow Stacy to state, “I think
[Appellant] needs a significant amount of jail time,” because it constitutes a
recommendation of a specific sentence. Our superior court held it improper to
admit presentencing testimony opining that an accused has “[n]o potential for
continued service,” which it found was tantamount to saying “[g]ive the
accused a punitive discharge.” United States v. Ohrt, 28 M.J. 301, 305
(C.M.A. 1989). Similarly, opining that an accused “needs” a certain form of
punishment is tantamount to recommending that the sentence include that
form of punishment. To allow a victim to make such a recommendation is not
in keeping with the framework for victim impact statements established
under RCM 1001(c), which is designed to enable crime victims to tell the
sentencing authority what impact the accused’s misconduct has had on them,
not what to do about it. Here, Stacy was allowed to tell the sentencing au-
thority that from her perspective Appellant needed not just confinement, but
a “significant amount” of it. Allowing her to make such a recommendation
was clear, obvious error.
If an error occurs in the admission of evidence at sentencing, the test for
prejudice is “whether the error substantially influenced the adjudged sen-
tence.” United States v. Hamilton, 78 M.J. 335, 343 (C.A.A.F. 2019) (citation
omitted). We determine this by considering four factors: “(1) the strength of
the Government’s case; (2) the strength of the [D]efense case; (3) the materi-
ality of the evidence in question; and (4) the quality of the evidence in ques-
tion.” Id. (citation omitted).
Appellant asserts the members sentenced him to five years’ confinement
because Stacy’s impact statement recommended significant jail time after
stating she had suffered for five years because of what Appellant had done to
her. We disagree. The trial counsel specifically asked for five years’ confine-
ment during the Government’s sentencing argument. Based on the compara-
tive strengths of the parties’ sentencing cases, we do not find the unsworn
impact statement to be so material or of such quality as to find that it sub-
stantially influenced the adjudged sentence. Even assuming it did, we con-
25 Rawle at 976 (emphasis added).
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Opinion of the Court
clude our reassessment of the sentence in light of the language we set aside
in the specification has purged the sentence of any possibility of such influ-
ence.
F. Cumulative Error
Finally, we address cumulative error. “It is well established that an appel-
late court can order a rehearing based on the accumulation of errors not
reversible individually.” United States v. Flores, 69 M.J. 366, 373 (C.A.A.F.
2011). “Courts are far less likely to find cumulative error where evidentiary
errors are followed by curative instructions or when a record contains over-
whelming evidence of a defendant’s guilt.” United States v. Dollente, 45 M.J.
234, 242 (C.A.A.F. 1996). As we have found three errors that were not cured
at trial, we ask whether we can say “with fair assurance, after pondering all
that happened without stripping the erroneous action from the whole, that
the judgment was not substantially swayed by the error . . . .” Banks, 36 M.J.
at 171 (quoting United States v. Yerger, 3 C.M.R. 22, 24 (C.M.A. 1952))
(internal quotation marks omitted).
Under the circumstances of this case, we conclude that the errors, taken
together with our remedial actions, did not undermine the fairness or integri-
ty of Appellant’s trial such that we must set aside his conviction or sentence
in toto. First, in striking the words “on divers occasions” from the specifica-
tion, we have cleansed the finding of any prejudicial error associated with the
MRE 513 issue or the profile testimony. As to the specification’s remaining
language, we find that as discussed above the record contains overwhelming
evidence of Appellant’s guilt. Hence, we hold that, “[a]s to the errors we
found, we do not believe there is a reasonable probability that, taken cumula-
tively, those errors might have contributed to the conviction.” Flores, 69 M.J.
at 373. Second, in reassessing the sentence, we have cleansed it of any error
associated with either the profile testimony or the victim impact statement.
Accordingly, we can say with certainty that the cumulative effect of these
errors has not affected the outcome of this case.
III. CONCLUSION
We SET ASIDE and DISMISS the words, “hips,” and “on divers occa-
sions,” from the specification. The findings as to the specification’s remaining
language and that portion of the sentence extending to a dishonorable dis-
charge and three years’ confinement are AFFIRMED.
Judges STEWART and HOUTZ concur.
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Opinion of the Court
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
24