United States v. Provorse ( 2015 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS
Appellate Military Judges
UNITED STATES OF AMERICA
v.
BRIAN G. PROVORSE
AIRCREW SURVIVAL EQUIPMENTMAN FIRST CLASS (E-6), U.S. NAVY
NMCCA 201400301
GENERAL COURT-MARTIAL
Sentence Adjudged: 27 March 2014.
Military Judge: CAPT Colleen Glaser-Allen, JAGC, USN.
Convening Authority: Commander, Naval Air Force Atlantic,
Norfolk, VA.
Force Judge Advocate's Recommendation: CAPT T.J. Welsh,
JAGC, USN.
For Appellant: Maj John Stephens, USMC.
For Appellee: Maj Suzanne Dempsey, USMC; Capt Cory Carver,
USMC.
8 October 2015
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
HOLIFIELD, Judge:
A panel of members with enlisted representation sitting as
a general court-martial convicted the appellant, contrary to his
pleas, of two specifications each of aggravated sexual abuse of
a child and indecent liberties with a child, in violation of
Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920. 1
The members sentenced the appellant to six years’ confinement
and a dishonorable discharge. The convening authority approved
the sentence as adjudged.
The appellant now raises ten assignments of error (AOE):
(1) The military judge abused her discretion in
finding the child victim unavailable for trial based
on his absence of memory;
(2) The military judge abused her discretion in
admitting the out-of-court statements of the child
victim, as the statements did not possess
circumstantial guarantees of trustworthiness;
(3) The military judge abused her discretion in
admitting the out-of-court statements of the child
victim as excited utterances;
(4) The child victim’s uncorroborated hearsay
statements were factually insufficient to support a
conviction;
(5) The military judge committed plain error in
allowing two Government witnesses to function as
“human lie detectors” to bolster the child victim’s
credibility;
(6) The military judge abused her discretion in
allowing Government witnesses to provide testimonial
hearsay;
(7) The military judge abused her discretion in
admitting non-pornographic photographs of young
children found on the appellant’s computers;
(8) The trial defense counsel (TDC) were ineffective
by failing to object to hearsay, including testimonial
hearsay;
(9) The military judge denied the appellant his Sixth
Amendment right to confront witnesses against him by
not requiring the child victim to testify; and,
1
As the offenses allegedly occurred in 2010, the version of Article 120, UCMJ
in effect from 1 October 2007 through 27 June 2012 applies.
2
(10) The cumulative effect of errors requires setting
aside the findings and sentence.
After carefully considering the record of trial and the
parties’ extensive submissions, we find merit in the appellant’s
fourth AOE and grant relief in our decretal paragraph. Having
considered AOEs VII, VIII, IX and X, we find them without merit.
United States v. Clifton, 35 M.J. 79, 81-82 (C.M.A. 1992). We
are convinced that following our corrective action the findings
and sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant remains. Arts. 59(a) and 66(c), UCMJ.
Factual Background
The appellant was a high school friend of Aviation
Electronics Technician First Class (AT1) C and his wife, Mrs. C.
Upon learning they were all stationed in the Hampton Roads,
Virginia area, the appellant contacted AT1 C, first in 2003, and
then after the birth of AT1 C’s son, DC, in 2007. From 2007 to
2010, the appellant interacted closely with AT1 C’s family, to
the extent that DC referred to him as “Uncle Brian.” 2
In January 2010, when Mrs. C entered the hospital to give
birth to a second child, she and AT1 C asked the appellant to
babysit DC. The appellant was alone with the boy for extended
periods over the next two days. Mrs. C gave birth to a son on
DC’s third birthday. Several days later, as Mrs. C. was lying
in bed at home recovering, she watched as her husband assisted
in DC’s toilet training. While AT1 C and DC were standing next
to each other at the toilet urinating, DC opened his mouth wide
and moved to place his mouth on his father’s genitalia. Both
parents immediately told DC this was improper, to which DC
replied, “Brian does that” and “Brian drinks my potty.” 3 When
his parents continued to tell DC such conduct was wrong, DC
adamantly repeated these statements and attempted to demonstrate
by trying to place his mouth on his own penis.
Confused and in partial denial, AT1 C and his wife took no
action on the boy’s comments, other than agreeing to keep a
closer eye on the appellant’s interactions with DC. Roughly
eight weeks later, in either late February or early March 2010,
2
Record at 691.
3
Id. at 701-02. At the time, DC used the term “potty” to refer equally to
his penis and the act of urinating. Id. at 414, 693, 746.
3
AT1 C was deployed and Mrs. C asked the appellant to watch her
sons while she went shopping. The appellant was alone with DC
and his brother for approximately an hour. Sometime during the
next several days, Mrs. C. was in the bathroom while DC was
standing at the toilet urinating. Believing she saw DC place
his hand in the urine stream, she asked him whether he had done
so. DC responded, “No, Brian touched my potty,” and “Brian
drinks my potty. Brian brushes his teeth.” 4
Mrs. C reported DC’s statements the next day. A subsequent
forensic interview was inconclusive, with the interviewer having
difficulty in understanding DC due to the latter’s delayed
speech skills. In response to the interviewer’s open-ended
questions, DC did not mention the alleged offenses.
A year later, as Mrs. C was instructing DC on the need to
report inappropriate touching, DC repeated his statement “Brian
touched my potty.” 5 Several months after that, when the
appellant’s name came up in casual conversation, DC said, “You
know. The man who touched my potty and drank it.” 6 DC made
similar statements to a forensic interviewer shortly thereafter,
in August 2011.
A subsequent search of the appellant’s computers and hard
drives revealed numerous photos of nude or partially clothed
infants and toddlers, most taken during baths or diaper changes.
At trial the military judge, over defense objection, let the
Government introduce eight of these photos as evidence of the
appellant’s state of mind or intent.
The Government preferred the present charges two years
after DC made these last statements. (The record contains no
explanation for the delay in preferral). At trial, the
appellant denied any inappropriate activity with DC.
Additional facts necessary to address the various AOEs will
be provided below.
DC’s Out-of-Court Statements
In his first three AOEs, the appellant claims the military
judge abused her discretion regarding the admissibility of AT1
4
Id. at 706.
5
Id. at 869.
6
Id. at 710.
4
C’s and Mrs. C’s testimony regarding DC’s statements to them.
We will address these AOEs together.
Before trial, the Government filed a motion in limine to
admit DC’s statements via his parents, and the defense responded
with a mirroring motion to exclude. Proffering that DC could no
longer remember the events of early 2010, the Government sought
the admission of DC’s January 2010, March 2010, and July 2011
statements under the residual hearsay exception found in MILITARY
RULE OF EVIDENCE 807, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).
The parties each presented expert testimony on the motion.
During this hearing, the TDC conceded that the January 2010
statements were admissible either under MIL. R. EVID. 807 or as
excited utterances under MIL. R. EVID. 803(2).
The military judge, based on the Government’s proffer,
issued a preliminary ruling 7 admitting all three statements.
Specifically, she noted the TDC’s concession regarding the
January 2010 statements, ruled the March 2010 statements were
admissible as both excited utterances and under the residual
hearsay exception, and ruled the July 2010 statements were
admissible under the residual hearsay exception.
During a subsequent Article 39(a), UCMJ, hearing, DC was
questioned under oath by both parties and the military judge.
His answers clearly demonstrated he had no memory of either the
appellant or the charged offenses. Accordingly, the military
judge found DC to be unavailable under MIL. R. EVID. 804,
reiterated her earlier, proffer-based ruling, and allowed DC’s
parents to testify to what DC said in January and March 2010,
and July 2011.
DC Unavailable
We review a military judge’s ruling on the availability of
a witness for abuse of discretion. United States v. Cabrera-
Frattini, 65 M.J. 241, 245 (C.A.A.F 2007). “So long as the
military judge understood and applied the correct law, and the
factual findings are not clearly erroneous, neither the military
judge’s decision to admit evidence, nor his unavailability
ruling, should be overturned.” Id. (citing United States v.
McDonald, 59 M.J. 426, 430 (C.A.A.F. 2004)). Among the various
bases for finding a witness unavailable is when the declarant
“testifies to a lack of memory of the subject matter of the
declarant’s statement.” MIL. R. EVID. 804(a)(3).
7
Appellate Exhibit XXXIV.
5
Here, based on DC’s testimony, the military judge found
that DC “has no memory of the subject matter in this case.” 8 He
denied knowing an adult named Brian, and said he did not
recognize the appellant, even when the latter stood before him
at counsel table. While DC claimed to remember the birth of his
brother in January 2010, the military judge was not convinced
that he did. Rather, the military judge found that DC merely
remembered that his brother was born on his birthday. DC did
not recall telling his parents or anyone else that he was
touched by anyone. Although the appellant is correct that DC
was not asked specifically whether the appellant had ever
touched his “potty,” DC’s testimony, taken as a whole, supports
the military judge’s finding that there is “absolutely no
evidence that [DC] recalls the events alleged in the charge
sheet,” and “that his memory is exhausted.” 9
We find nothing clearly erroneous in the military judge’s
findings, or in her application of MIL. R. EVID. 804 to those
findings. Accordingly, we conclude she did not abuse her
discretion in finding DC to be unavailable.
DC’s Statements
During the pretrial motions hearing, the TDC conceded that,
regarding DC’s January 2010 statements, “there’s multiple ways,
[MIL. R. EVID.] 807, excited utterance, that those statements in
the bathroom be allowed in.” 10 The TDC, however, did object to
the admission of DC’s March 2010 and July 2011 statements.
Accordingly, the military judge’s decision to admit this
evidence is reviewed for an abuse of discretion. United States
v. Kasper, 58 M.J. 314, 318 (C.A.A.F. 2003). When testing for
abuse of discretion, we examine whether the “challenged action
[is] arbitrary, fanciful, clearly unreasonable, or clearly
erroneous.” United States v. Solomon, 72 M.J. 176, 179
(C.A.A.F. 2013) (citation and internal quotation marks omitted).
We first examine the admissibility of all three sets of
statements under the residual hearsay exception. If the
8
Record at 416.
9
Id. at 418.
10
Id. at 278. Forfeited issues regarding admission of evidence are normally
reviewed under a “plain error” standard. United States v. Eslinger, 70 M.J.
193, 197-98 (C.A.A.F. 2011). For simplicity’s sake, we will assume the TDC
objected to the January 2010 statements and review them together with the
March 2010 and July 2011 statements using the lower “abuse of discretion”
standard. The result is the same.
6
statements were properly presented to the members under this
exception, any objection to the military judge relying on the
excited utterance exception (for the January and March 2010
statements) is necessarily moot.
The residual-hearsay exception, MIL. R. EVID. 807, applies
to “highly reliable and necessary evidence.” United States v.
Wellington, 58 M.J. 420, 425 (C.A.A.F. 2003) (quoting United
States v. Giambra, 33 M.J. 331, 334 (C.M.A. 1991)) (additional
citation omitted). “A military judge's decision to admit
residual hearsay is entitled to ‘considerable discretion’ on
appellate review.” Id. (citation omitted).
For a hearsay statement to be admissible under this
exception, it must have circumstantial guarantees of
trustworthiness equivalent to the other exceptions to the
hearsay rule. Giambra, 33 M.J. at 334; see also Ohio v.
Roberts, 448 U.S. 56, 66 (1980). Also, “the court [must
determine] that, (A) the statement is offered as evidence of a
material fact; (B) the statement is more probative on the point
for which it is offered than other evidence which the proponent
can procure through reasonable efforts; and (C) the general
purposes of these rules and the interests of justice will best
be served by admission of the statement into evidence.” MIL. R.
EVID. 807. 11
In testing whether a statement is supported by such
guarantees of trustworthiness, we will look to all indicia of
reliability, including: (1) the mental state and age of the
declarant; (2) the spontaneity of the statement; (3) the use of
suggestive questioning; and (4) whether the statement can be
corroborated. United States v. Donaldson, 58 M.J. 477, 488
(C.A.A.F. 2003). A military judge’s findings of fact regarding
circumstantial guarantees of trustworthiness are reviewed for
clear error. Id.
The military judge’s findings of fact regarding the
admissibility of DC’s March 2010 and July 2011 hearsay
statements are summarized as follows:
(a) DC’s statements were “clear, voluntary and
uncontrived,” without motive to fabricate, in terms
appropriate to a three- and four-year-old; 12
11
The final requirement of MIL. R. EVID. 807, that the proponent must provide
timely notice of intent to offer the evidence at trial, was clearly met in
this case.
12
AE XXXIV at 10.
7
(b) DC had “no reason to believe anything was wrong”
and “no way of knowing the ramifications of his
statement;” 13
(c) All of DC’s statements were spontaneous and
consistent; and,
(d) The statements were not the result of suggestive
questioning. The January 2010 and March 2010
statements occurred before Mrs. C. questioned DC
concerning whether the appellant had touched him, and
DC made the July 2011 statements more than a month
after his mother had last raised the issue of
inappropriate touching. Expert testimony indicated DC
was not susceptible to suggestion, and less likely
than most children to “acquiesce to a version of
events different than [his] own.” 14
The military judge did not consider whether the statements could
be corroborated, relying instead on the totality of the other
indicia of reliability listed.
Upon review of the record, we find nothing clearly
erroneous in the military judge’s findings of fact. We
similarly find no error in her application of these facts to the
law. Accordingly, we conclude the appellant’s claims that DC’s
hearsay statements were erroneously admitted under the residual
hearsay exception are without merit. 15
Factual Sufficiency
Under Article 66(c), UCMJ, we conduct a de novo review of
factual sufficiency of each case before us. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for
factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having
personally observed the witnesses,” we are ourselves convinced
of the accused's guilt beyond a reasonable doubt. United States
v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “Such 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.” Washington, 57 M.J. at 399. Proof beyond a
13
Id.
14
Id. at 11.
15
As noted above, this ruling on the appellant’s second AOE moots his third.
8
reasonable doubt does not mean, however, that the evidence must
be free from conflict. United States v. Goode, 54 M.J. 836, 841
(N.M.Ct.Crim.App. 2001).
Specifications 1 and 2 – January 2010
The elements of aggravated sexual abuse of a child are: (a)
that the accused engaged in a lewd act, and (b) that the act was
committed with a child who had not attained the age of 16 years.
Article 120(f), UCMJ. At trial, the Government had the burden
of proving both of these elements beyond a reasonable doubt.
“The testimony of only one witness may be enough to meet this
burden so long as the members find that the witness’s testimony
is relevant and is sufficiently credible.” United States v.
Rodriguez-Rivera, 63 M.J. 372, 383 (C.A.A.F. 2006).
As the evidence of DC’s age was clear and uncontested, we
focus on the first element. The appellant was convicted of two
separate specifications, one of placing DC’s penis in his mouth
and another of touching DC’s penis with his hand. Considering
the entire record, particularly the circumstances in which DC
made the statements, their spontaneous and consistent nature,
DC’s use of age-appropriate terms, his attempt to demonstrate
for his parents, and the lack of any indication that he made the
statements in response to suggestive questioning, we find the
Government has met its burden on these two specifications. We
acknowledge the lack of corroborating evidence and the
appellant’s denial of the charged offenses; nevertheless, we are
convinced of the appellant’s guilt beyond a reasonable doubt.
Specifications 3 and 4 – March 2010
We are not, however, similarly convinced as to the
remaining specifications. Among the elements of indecent
liberty with a child are that the accused committed an indecent
act or communication in the presence of a child. Specifications
3 and 4 allege acts similar to those found in the first two
specifications, but on a later date. Other than the fact DC
made statements following the day the appellant babysat him in
March, there is no evidence to indicate DC was referring to any
event outside the period alleged in Specifications 1 and 2. DC
did not tell his mother that the appellant “drank his potty
again,” or “just like last time.” He merely repeated his
allegations that the appellant “touched” and “drinks” his
“potty.” 16 Similarly, DC’s July 2011 statements offer nothing to
16
Record at 706.
9
indicate the appellant improperly touched him on more than one
occasion in 2010.
While the military justice system acknowledges the
difficulties in proving allegations based on the uncorroborated
statements of children, the presence of a child victim in a case
in no way relieves the Government of its burden of proof. The
evidence here shows the triggering event for DC making his March
2010 statements was his mother questioning him about touching
his urine. Neither the questions nor the response provide any
temporal framework. As it is equally likely DC was describing
the appellant’s lewd acts in January, and not a separate
incidence of indecent liberties in March, we cannot conclude
that the Government has proven the appellant’s guilt of
Specifications 3 and 4 beyond a reasonable doubt.
Expert Testimony
As part of its case-in-chief, the Government offered two
experts, Ms. Thames and Ms. Killips. Ms. Thames initially
interviewed DC in March of 2010, but was unable to understand
his responses. When she re-interviewed him in August 2011, she
still had difficulty, but could understand most of what DC said.
She noted that DC would correct her as she repeated his words
back to him. Ms. Thames testified this indicated DC was
resistant to suggestibility. Ms. Killips did not interview DC,
but did review recordings of his interviews with Ms. Thames, as
well as the statements and testimony of DC’s parents. She
testified regarding disclosure patterns of child victims of
sexual abuse and that she, too, believed DC was resistant to
suggestibility.
Human Lie Detector Evidence
The appellant claims that this testimony amounted to the
two experts acting as human lie detectors. As the TDC did not
object to this testimony, we review the military judge’s
decision to admit the testimony for plain error. United States
v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014). The appellant has the
burden of establishing (1) error that is (2) clear or obvious
and (3) results in material prejudice to his substantial rights.
Id. at 36. “An obvious error materially prejudices the
substantial rights of the accused when it has ‘an unfair
prejudicial impact on the [court members'] deliberations.’” Id.
at 37 (quoting United States v. Powell, 49 M.J. 460, 463
(C.A.A.F. 1998)) (alteration in original) (additional citation
omitted).
10
“It is the ‘exclusive province of the court members to
determine the credibility of witnesses.’” Id. at 34 (quoting
United States v. Brooks, 64 M.J. 325, 328 n.3 (C.A.A.F. 2007)).
The appellant argues that the experts’ opinions regarding DC’s
resistance to suggestibility were equivalent to saying DC was
being truthful in his allegations. We disagree. Ms. Thames’
brief testimony was confined to her opinion on suggestibility.
She did not offer any opinion regarding DC’s credibility. When
asked whether she thought the memories recounted by DC during
the August 2011 were in fact his, she said she “[couldn’t] say
one way or the other.” 17 Furthermore, when a member indicated a
desire to know Ms. Thames’ opinion on this point, the military
judge refused to ask the question. While Ms. Killips’ testimony
was somewhat more involved, she, likewise, did not offer an
opinion as to DC’s credibility.
After Ms. Thames’ testified, the military judge asked
whether either party wished her to give “an instruction to the
members . . . reminding them that credibility’s for them to
determine?” 18 Both the Government and defense clearly indicated
they did not want such an instruction given at that time. At
the conclusion of Ms. Killips’ testimony, however, the military
judge instructed the members as follows:
I just want to remind you that only you, the members
of the court, determine the credibility of the
witnesses and what the facts of this case are. No
expert witness, or other witness, can testify that the
alleged victim’s account of what occurred is true or
credible, that the expert or another witness believes
. . . the alleged victim or another witness, or a
sexual encounter occurred. [Those], of course, are
factual issues and those are within your purview as
the panel in this case. 19
At the conclusion of the presentation of evidence, the
military judge provided a nearly identical instruction to the
members. She also instructed them that, “[t]o the extent that
you believe that Ms. Killips testified or implied that she
believes the alleged victim, his parents, or that a crime
occurred, or that they are credible, you may not consider this
17
Id. at 789.
18
Id. at 808.
19
Id. at 846.
11
as evidence that a crime occurred or that they are, in fact,
credible.” 20 The military judge gave no such instruction
regarding Ms. Thames.
Considering the testimony and instructions together, we
find no error, plain or otherwise. We do not find the testimony
of either expert to constitute human lie detector testimony.
Even were we to assume the members interpreted the testimony as
a comment on DC’s credibility, we are confident the military
judge’s instructions properly resolved the matter. That neither
instruction specifically referred to Ms. Thames is of no import.
The appellant argues that the fact a member asked Ms. Thames to
opine on DC’s credibility should have alerted the military judge
that at least one member was “focused in on” the issue. 21 While
we certainly hope the members were focused on the question of
DC’s credibility—it being the central issue in the Government’s
case—we see this member’s question only as further evidence that
Ms. Thames had not already provided the opinion sought. Thus,
we see no error, let alone plain or obvious error, in the
military judge not providing a limiting instruction immediately
after Ms. Thames testified or specifically mentioning her in the
charging instructions.
Testimonial Hearsay
The appellant next claims the military judge abused her
discretion in allowing the experts to provide testimonial
hearsay. We disagree.
Whether a statement constitutes testimonial hearsay is a
question of law which we review de novo. 22 United States v.
Squire, 72 M.J. 285, 288 (C.A.A.F. 2013). “The Confrontation
Clause bars the ‘admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for
cross-examination.’” United States v. Rankin, 64 M.J. 348, 351
(C.A.A.F. 2007) (quoting Crawford v. Washington, 541 U.S. 36,
53-54 (2004)). Factors to consider in determining whether a
20
Id. at 993.
21
Appellant’s Brief of 18 Feb 2015 at 73.
22
When trial defense counsel fails to object to such evidence, we will
normally review for plain error. But, in light of AOE VIII (claiming
ineffective assistance of counsel for failing to object to testimonial
hearsay), we will examine this issue by assuming such an objection was made
at trial. The result is the same.
12
statement is testimonial include whether: “(1) the statement was
elicited by or made in response to law enforcement or
prosecutorial inquiry; (2) the statement involved more than a
routine and objective cataloging of unambiguous factual matters;
and (3) the primary purpose for making, or eliciting, the
statement was the production of evidence with an eye toward
trial.” Squire, 72 M.J. at 288 (citing United States v.
Gardinier, 65 M.J. 60, 65 (C.A.A.F. 2007) and Rankin, 64 M.J. at
352).
Where evidence is erroneously admitted in violation of the
Confrontation Clause of the Sixth Amendment, our review must
“determine whether the error is harmless beyond a reasonable
doubt.” United States v. Gardinier, 67 M.J. 304, 306 (C.A.A.F.
2009) (citation omitted). In doing so, we look to the factors
set forth in Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986),
namely, “the importance of the witness’ testimony in the
prosecution’s case, whether the testimony was cumulative, the
presence or absence of evidence corroborating or contradicting
the testimony of the witness on material points, the extent of
cross-examination otherwise permitted, and, of course, the
overall strength of the prosecution’s case.” (Citations
omitted).
Ms. Thames did not testify on direct examination regarding
any statements made by DC during her August 2011 forensic
interview of him. During examination by the court, however, the
military judge allowed a member to ask her, “what specifically
did [DC] allege as the maltreatment?” 23 She responded, “[DC]
said that Brian touched his potty and drank his potty.” 24
Ms. Killips’ testimony was, in part, based upon her
reviewing recordings of both Ms. Thames’ August 2011 interview
with DC and an earlier conversation between DC and his mother.
In discussing how suggestibility may influence children, she
described how Ms. Thames did not use leading or suggestive
questions in her interview. But Ms. Killips then described how
DC’s parents’ response to his initial disclosures—that “this is
nasty, this is yucky, we don’t do that” 25—may have affected DC’s
statements to Ms. Thames. As an example, she stated that, while
“there was no expansion of the disclosure [,] . . . by the last
23
Record at 812; AE LIII.
24
Id.
25
Id. at 829.
13
interview [DC was] saying that this was disgusting. I didn’t
want it. I said no[.]” 26
The evidence leaves no doubt that these statements by DC,
made during a forensic interview with Ms. Thames, did not
involve merely the “routine and objective cataloging of
unambiguous factual matters.” Instead, the statements were
central to the allegation and were elicited for the purpose of
creating evidence with an eye toward prosecution. This is
evidenced by Ms. Thames’ description of her child advocacy
center as a “one stop shop for child abuse investigations,”
“created so that children aren’t asked to go from law
enforcement to social services to prosecutor.” 27 Accordingly, we
find that DC’s statements as recounted by both Ms. Thames and
Ms. Killips constituted testimonial hearsay, and that admission
of this testimony was error. We must, therefore, now look to
see whether the error is harmless beyond a reasonable doubt.
Applying the Van Arsdall factors, we find:
(1) While the experts’ testimony likely aided the members
in understanding the dynamics of child reporting, the critical
evidence in this case was the statements and actions described
by DC’s parents. The expert’s recitation of DC’s statements was
certainly not central to the expert’s testimony. In fact, Ms.
Killips only used DC’s statements as an example to prove her
point about the effect of blaming and suggestibility on such
reports. If anything, her testimony demonstrated the
untrustworthiness of DC’s later statements.
(2) The expert’s testimony was cumulative with the
testimony of both AT1 C and his wife. Although Ms. Killips’
testimony included statements by DC that the court had not
otherwise heard, they were not offered to show what DC said, but
rather to demonstrate the effect of suggestibility on DC’s later
description of events.
(3) The statements relayed by the experts are
uncorroborated, except to the extent it was uncontested that the
appellant had spent time alone with DC immediately before DC
reported. The statements are contradicted only by the
appellant’s testimony.
26
Id.
27
Id. at 778.
14
(4) The trial defense counsel was allowed to cross-examine
both Ms. Thames and Ms. Killips at length. Ms. Thames admitted
that it was possible DC’s statements were influenced by his
parents’ questioning, and that she “can’t say one way or the
other” that the memories DC described in the August 2011
interview were his. 28 Likewise, Ms. Killips conceded under
cross-examination that she did not know what conversations may
have occurred between DC and his mother before the August 2011
interview.
(5) In general, the Government faces a difficult burden in
proving guilt based solely on a young child’s testimony. In
this case, however, the Government’s case was strengthened by
the circumstances in which DC reported the appellant’s actions,
including DC’s attempts to demonstrate for his parents. That
the members heard DC’s statements an additional time or two is
of minimal importance when compared to the circumstances of DC’s
reports as described by DC’s parents.
Taking all of these factors into consideration, we are
convinced that any error in admitting the expert’s testimony was
harmless beyond a reasonable doubt.
Sentence Reassessment
As we conclude the finding of guilt as to Specifications 3
and 4 cannot stand, we will reassess the sentence in accordance
with the principles set forth in United States v. Moffeit, 63
M.J. 40, 41 (C.A.A.F. 2006), United States v. Cook, 48 M.J. 434,
438, (C.A.A.F. 1998), and United States v. Sales, 22 M.J. 305,
307-09 (C.M.A. 1986). After being instructed the maximum
punishment they could impose was “reduction to the grade of E-1,
forfeiture of all pay and allowances, confinement for a period
of 35 years and a dishonorable discharge,” 29 the members
sentenced the appellant to confinement for six years and a
dishonorable discharge. While our holding reduces the maximum
period of confinement to 20 years and effectively reframes the
appellant’s misconduct as a one-time event, thereby presenting a
“dramatic change in the penalty landscape,” United States v.
Buber, 62 M.J. 476, 479 (C.A.A.F. 2006) (quoting United States
28
Id. at 789.
29
Id. at 1099. The military judge had previously ruled that the four
specifications represented an unreasonable multiplication of charges for
sentencing purposes, and merged Specification 1 with Specification 2 and
Specification 3 with Specification 4 for sentencing purposes.
15
v. Riley, 58 M.J. 305, 312 (C.A.A.F. 2003)), this change does
not preclude our ability to reassess the sentence in this case.
Certainly the fact the appellant stands convicted of only
once sexually assaulting a child, and not doing so multiple
times, is significant. However, whether it was one or two
occasions, the charged misconduct was essentially the same.
Also, in its sentencing argument, the Government did not draw
attention to the fact the members found the appellant guilty of
misconduct with DC both times he was left alone with him.
Rather, trial counsel dealt with the two events in a combined,
general sense. Finally, the great difference between the
maximum punishment and adjudged sentence indicates the members
were not influenced by the erroneous, higher maximum upon which
they were instructed. Accordingly, we conclude that the members
would have imposed a sentence nearly as severe for one act as
they did for two. We are convinced they would have imposed a
sentence of no less than four years’ confinement and a
dishonorable discharge. We further conclude such a sentence is
appropriate in this case.
Conclusion
The findings of guilty to Specifications 3 and 4 of the
Charge are set aside. Specifications 3 and 4 are dismissed. 30
The remaining findings of guilty as to the Charge and
Specifications 1 and 2, and only so much of the sentence as
includes four years’ confinement and a dishonorable discharge,
are affirmed.
Senior Judge BRUBAKER and Judge MARKS concur.
For the Court
R.H. TROIDL
Clerk of Court
30
We note the promulgating order omits any mention of Specification 4. While
such a glaring omission would normally require remand for new post-trial
processing, our action regarding Specifications 3 and 4 makes the issue moot.
Regardless, that this obvious error could have escaped detection by the staff
judge advocate and both appellate counsel causes this court great concern.
16