United States v. DOMINGUEZ ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, HOUTZ, and MYERS
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Manuel J. DOMINGUEZ
Lieutenant Commander (O-4), U.S. Navy
Appellant
No. 202000109
Argued: 29 September 2021—Decided: 22 October 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Ann K. Minami
Sentence adjudged 10 February 2020 by a general court-martial
convened at Joint Base Pearl Harbor-Hickam, Hawaii, consisting of
officer members. Sentence in the Entry of Judgment: confinement for
16 years and a dismissal.
For Appellant:
Tami L. Mitchell, Esq. (argued)
David P. Sheldon, Esq. (on brief)
Lieutenant Commander Christopher K. Riedel, JAGC, USN (on brief)
Lieutenant Commander Michael W. Wester, JAGC, USN (on brief)
For Appellee:
Lieutenant Catherine M. Crochetiere, JAGC, USN (argued)
Lieutenant John L. Flynn, JAGC, USN (on brief)
Major Kerry E. Friedewald, USMC (on brief)
Lieutenant Jennifer Joseph, JAGC, USN (on brief)
United States v. Dominguez, NMCCA No. 202000109
Opinion of the Court
Senior Judge GASTON delivered the opinion of the Court, in which
Judges HOUTZ and MYERS joined.
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
GASTON, Senior Judge:
A panel of officers convicted Appellant, contrary to his pleas, of two speci-
fications of rape of a child and one specification of sexual abuse of a child, in
violation of Article 120b, Uniform Code of Military Justice [UCMJ], 1 for
penetrating the vulva of his five-year-old daughter, Ocean, 2 with his mouth
and finger and causing her to touch his genitalia for sexual gratification.
He asserts nine assignments of error [AOEs], which we renumber and
restate as follows:
I. Did the military judge abuse her discretion in admit-
ting two videotaped forensic interviews of Ocean
(Prosecution Exhibits 10 and 11) under the residual
hearsay exception, Military Rule of Evidence [Mil. R.
Evid.] 807?
II. Did the military judge abuse her discretion in deny-
ing the Defense’s motion to admit evidence under Mil.
R. Evid. 412?
III. Did the military judge abuse her discretion in admit-
ting an excerpted report of a medical examination of
Ocean (Prosecution Exhibit 2) and testimony from the
examining nurse regarding Ocean’s statements, un-
der the hearsay exception for statements made for
medical diagnosis or treatment, Mil. R. Evid. 803(4)?
1 10 U.S.C. § 920b.
2 All names in this opinion, other than those of Appellant, the judges, and coun-
sel, are pseudonyms.
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United States v. Dominguez, NMCCA No. 202000109
Opinion of the Court
IV. Did the cumulative effect of the errors substantially
impair the fairness of Appellant’s trial?
V. Did the military judge abuse her discretion in deny-
ing a Defense motion for a continuance?
VI. Were Appellant’s trial defense counsel ineffective for:
(a) Failing to be prepared to rebut Prosecution
Exhibits 10 and 11?
(b) Failing to present expert testimony regarding
Ocean’s suggestibility and the impact of the influence
of her mother and therapist on Ocean’s reporting?
(c) Failing to present evidence of Ocean’s medical
history, cultural norms, and gender bias in Appel-
lant’s “intimate care” of her, which would have estab-
lished a legitimate non-sexual purpose for touching?
(d) Failing to adequately prepare Appellant to
testify?
(e) Failing to timely move the court to admit evi-
dence under Mil. R. Evid. 412?
VII. Is the evidence legally and factually sufficient to
sustain Appellant’s convictions?
VIII. Did the military judge abuse her discretion in failing
to merge Specifications 2 and 3 of Charge I for sen-
tencing?
IX. Does a mandatory minimum sentence of dismissal for
rape of a child violate:
(a) The Eight Amendment prohibition against
cruel and unusual punishment?
(b) The Fifth Amendment right to due process in
receiving individualized consideration for sentenc-
ing?
(c) The Fifth Amendment right to plead not guilty
and require the Government to prove its case?
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Opinion of the Court
We find merit in Appellant’s first, second, third, and fourth AOEs, set
aside the findings and sentence, and do not reach the remaining AOEs.
I. BACKGROUND
In 2015, Appellant and his wife, Ms. Bravo, experienced marital difficul-
ties after six years of marriage. They differed over parenting styles, and
Ms. Bravo disapproved of Appellant socializing with other junior officers. In
September, a verbal argument led to an intoxicated Appellant assaulting
Ms. Bravo in front of their two small children and being arrested by local
police in Texas. The couple subsequently talked of divorce but decided to
reconcile and attend marriage counseling. In October, they moved to Hawaii,
where Appellant and Ms. Bravo shared parental responsibilities over their
four-year-old daughter Ocean and her younger brother, including bathing
with them, wiping them after they used the toilet, spanking them occasional-
ly, and getting them ready for bed. Appellant told Ms. Bravo that once during
a bath, Ocean poked his penis with her finger out of curiosity, and he had
Ms. Bravo bathe with her from then on.
In May 2016, Ocean, who was just turning five, told Ms. Bravo she had
played a game with a seven-year-old girl in the neighborhood called “kiss
each other’s privacy.” 3 Ms. Bravo responded, “[T]hat sounds kind of yucky,
doesn’t it?” 4 Ocean told Ms. Bravo the girl had kissed her “private” with a
closed mouth and she had kissed the girl’s “backside.” 5 She said she was
scared the girl would be mad at her for telling because the girl had made her
promise not to tell anyone.
In August 2016, Appellant and Ms. Bravo, unable to resolve their differ-
ences, decided to separate. Their separation agreement granted custody of
the children to Ms. Bravo and visitation rights to Appellant. Ms. Bravo then
moved with the children to Texas, while Appellant remained in Hawaii and
stayed in contact with them via phone and video-teleconference.
In Texas, Ocean began acting rude and angry toward Ms. Bravo, blaming
her for breaking up the family and telling her she missed Appellant and was
concerned about him going to jail again. Ms. Bravo explained that Appellant
knew he had made a horrible mistake when he assaulted her and had to go to
3 App. Ex. LI.
4 Id.
5 Id.
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Opinion of the Court
jail. Ocean told her she hated the family picture that did not have Appellant
in it and threw tantrums during which she said she wanted to be with
Appellant.
In September 2016, Ms. Bravo took Ocean to see a child therapist,
Ms. Bailey, to address her prolonged tantrums and other behavioral issues.
Ocean had begun receiving therapy for similar issues in Hawaii, and
Appellant supported her continuing to see a therapist in Texas. Ms. Bravo
told Ms. Bailey about the “privacy game” Ocean had played the previous May
with her seven-year-old neighbor. At Ms. Bailey’s suggestion, Ms. Bravo
asked Ocean if anyone had ever touched her inappropriately and went over
with her who was allowed to touch her and for what reasons. Consistent with
Ms. Bailey’s advice, Ms. Bravo asked these questions in a general way that
did not suggest or refer to anyone in particular, including Appellant. Ocean
“responded with what [Ms. Bravo] expected her to respond” 6 and made no
allegations against Appellant.
A. Ocean’s Allegations
In early February 2017, after Ocean had trouble sleeping and began
having a tantrum, Ms. Bravo spanked her so hard that she applied an ice
pack to Ocean’s bottom afterwards. As she did so, Ocean told her the
spanking reminded her that Appellant was not there. Ms. Bravo then asked
Ocean again about whether she had played any “privacy games,” but this
time, against Ms. Bailey’s advice, she asked specifically if there were “any
secrets that [she] and [Appellant] had or any games that [they] played that
[Ms. Bravo] didn’t know.” 7 In response to Ms. Bravo’s questioning, Ocean
alleged that Appellant had sexually abused her, which Ms. Bravo reported to
Texas Child Welfare Services. The case was then forwarded to Child
Protective Services in Hawaii, where local law enforcement and the Naval
Criminal Investigative Service [NCIS] were notified and opened investiga-
tions.
1. First Forensic Interview
A week later, in mid-February 2017, Ocean was interviewed by a forensic
interviewer, Ms. Charlie. Ocean told Ms. Charlie that when she was five
Appellant had her “touch his ding-ding [penis] and play with it for a long
6 R. at 553.
7 R. at 555.
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Opinion of the Court
time.” 8 She said it was “poking out” and Appellant was holding her arm and
telling her to keep going because it felt good. 9 She said she felt “slimy stuff”
on her finger and “there was a little bit of white stuff.” 10 She said she tried to
wipe off the slimy, wet stuff but Appellant told her to put her finger on her
mouth. She then said Ms. Bravo walked in and “saw [her] doing this to
[Appellant’s] ding-ding,” said “Stop,” and told Appellant, “Go somewhere else
and don’t get by my kids again.” 11
Ocean also told Ms. Charlie that once, when Appellant was wiping her
after she went to the toilet, he “dug his finger in” her “butt” to make sure
there was “no more poop coming out.” 12 She said that on another occasion
Appellant opened and wiped her vagina with a wipe while she was sitting on
the toilet “to make sure there [were] no more drips coming out . . . so [her]
tutu [vulva] [did] not burn,” which she said hurt and felt weird. 13
When asked, “Was there ever a time something different happened with
your dad?” Ocean responded, “No.” When asked, “Was there ever a time
something like the stuff we’ve been talking about happened to you with
someone else?” Ocean responded, “No, only to me.” 14
2. Drawing in Therapist’s Office
Ocean’s therapist, Ms. Bailey, did not ask Ocean about her allegations;
however, during a therapy session in April 2017, Ocean drew a picture of her
family members at their old house in Hawaii. She told Ms. Bailey that in the
picture, she was in the bathroom waiting for Appellant to come wipe her. 15 At
the bottom of the picture Ocean wrote, “he did hrt me! He stuck his fingr in
me! It hrt. I told him no trespassing but he did it!” 16
8 Pros. Ex. 10; App. Ex. LIX at 9.
9 Pros. Ex. 10; App. Ex. LIX at 12.
10 Id.
11 Pros. Ex. 10; App. Ex. LIX at 14. Ms. Bravo in her trial testimony denied doing
or saying this. R. at 951–55.
12 Pros. Ex. 10; App. Ex. LIX at 18.
13 Pros. Ex. 10; App. Ex. LIX at 18–19.
14 Pros. Ex. 10; App. Ex. LIX at 21.
15 R. at 1056–57.
16 Pros. Ex. 1 at 1.
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Opinion of the Court
3. Statements During Forensic Medical Examination
In August 2017, Ocean, then six years old, was examined at a children’s
medical center pursuant to its “physical and sexual abuse medical protocol.” 17
In taking a history from Ocean, the examining nurse, Ms. Williams, asked
“had anybody made [her] feel uncomfortable or touched [her] in a way that
made [her] uncomfortable?” 18 Ocean said that while at home Appellant “did
this little piggy then did this,” pointing to her genitalia, and “it hurt.” 19 When
asked whether this was on top of her clothes or under her clothes, Ocean said
that “it was inside, but sometimes on top, under [her] panties.” 20 She said
that “[w]hen [she] did poop, he digged really far down there . . . when he was
wiping [her].” 21 She also said that “he made me kiss his ding-ding, his
private” (penis). 22 She said, “He scraped his private with his finger and made
me kiss it” and there was something “slimy” and “[she] had to eat a little
bit.” 23 When asked “how many times did this happen to you,” she said “19 or
20 times.” 24 She also said Appellant “was always saying don’t tell your
mother. He told me I would get a spanking or something.” 25
4. Second Forensic Interview
In June 2018, Ocean, then seven years old, was forensically interviewed a
second time by Ms. Charlie. This time, when asked about Appellant, Ocean
said he did “this little piggy” and “when he went wee, wee all the way home,
he touched it and then he went . . . in this part and it hurt[ ].” 26 When
Ms. Charlie asked, “What do you call that part, because I don’t want to
misunderstand?” Ocean responded, “Abusing.” 27 Subsequently, Ocean said
she had been having discussions with Ms. Kilo, a therapist working down the
17 Pros. Ex. 2 at 1.
18 R. at 516.
19 R. at 515–16; Pros. Ex. 2 at 2.
20 Id.
21 R. at 517; Pros. Ex. 2 at 2.
22 Id.
23 R. at 517–19; Pros. Ex. 2 at 2.
24 R. at 519; Pros. Ex. 2 at 2.
25 R. at 517; Pros. Ex. 2 at 2.
26 Pros. Ex. 11; App. Ex. LX at 5.
27 Pros. Ex. 11; App. Ex. LX at 5–6.
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Opinion of the Court
hall from Ms. Charlie, “who taught [her] about abuse and what [Appellant]
did to [her] and what’s wrong and what’s right.” 28
Ocean said the “little piggy” incident occurred when she was sitting on
her parents’ bed in Hawaii and that Appellant “went on [her] side and then
he digged and then he went down there,” meaning the part she uses “to
pee.” 29 She said he used four fingers and “poked” inside “her private” and it
“hurted really bad.” 30
Ocean said that on another occasion she and Appellant were next to the
wall by the towels in the bathroom, and she saw “his private part.” 31 She said
she saw “green stuff coming out of it” and he told her to put her finger on the
green stuff and “forced [her] hand to put it in [her] mouth” and “made [her]
suck on it. 32 She said it “tasted like somebody ate throw up or something.” 33
When asked “was there ever a time something different happened with
[Appellant],” Ocean said, “Not that I remember like—but I feel like there’s
one more thing but I can’t remember.” 34 When Ms. Charlie later asked, “Did
[Appellant] ever put his mouth on any part of your body?” Ocean first said,
“No,” and then said, “Actually I—that was the part that I forgot. Once he put
his mouth on this part right here” and she pointed to her vaginal area. 35 She
said he pulled her panties to the side and “put his mouth down there” on the
part she pees from and “licked it . . . with his tongue,” and “it felt gross.” 36
When asked, “Was there ever a time anyone else asked to see any private
parts of your body,” Ocean responded, “No.” 37 When asked, “Was there ever a
28 Pros. Ex. 11; App. Ex. LX at 22.
29 Pros. Ex. 11; App. Ex. LX at 7.
30 Pros. Ex. 11; App. Ex. LX at 8–9.
31 Pros. Ex. 11; App. Ex. LX at 12.
32 Pros. Ex. 11; App. Ex. LX at 12–14.
33 Pros. Ex. 11; App. Ex. LX at 14.
34 Pros. Ex. 11; App. Ex. LX at 15.
35 Pros. Ex. 11; App. Ex. LX at 18.
36 Pros. Ex. 11; App. Ex. LX at 19.
37 Pros. Ex. 11; App. Ex. LX at 23.
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Opinion of the Court
time someone else ever touched any private parts of your body?” Ocean
responded, “No.” 38
5. Trial Testimony
In February 2020, Ocean, then eight years old, testified at Appellant’s
trial. She said she touched Appellant’s “ding-ding” with her finger “[o]nce”
after Appellant told her to “stick” her finger on it, held her arm, and said,
“Keep doing it, it feels good.” 39 She said it was “sticking out”; that when she
touched it she felt a little bit of goo that was “kind of, like, clear”; that he told
her to put it on her lip; and that it felt “really gross” but she did not taste it. 40
She said that on another occasion in the family home in Hawaii, she was
playing “this little piggy” with Appellant, and when he went “wee wee all the
way home,” instead of tickling her like they normally did, he put his finger in
her “tutu,” which “hurt really bad.” 41 She denied that Appellant ever put his
mouth on her “tutu” or ever kissed her anywhere but on her face. 42
B. Appellant’s Statements
In February 2017, after learning of the operational message his command
had sent out regarding Ocean’s allegations, Appellant texted Ms. Bravo that
he was being brought in by NCIS for questioning and denied ever touching
the children inappropriately. When interviewed by NCIS, Appellant waived
his rights, denied sexually abusing Ocean, and consented to a search of his
home and his digital media.
At trial, Appellant testified in his defense and denied the allegations. He
described his troubled relationship with Ms. Bravo and his care for the
children. He said he touched Ocean’s vagina and bottom while wiping her
with wipes after she used the toilet and while spanking her and bathing her,
not for purposes of sexual gratification. He said that Ocean once poked his
penis with her finger during a bath, after which he had Ms. Bravo bathe her.
Additional facts necessary to resolve the AOEs are addressed below.
38 Id.
39 R. at 441–44.
40 Id.
41 R. at 447.
42 R. at 448.
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Opinion of the Court
II. DISCUSSION
A. Admission of Evidence under the Residual Hearsay Rule
After Ocean testified that Appellant had never put his mouth on her
“tutu” or kissed her anywhere but on her face, the trial counsel asked her,
“When you spoke to [the forensic interviewer, Ms. Charlie] and told her
everything that happened to you, do you remember everything that happened
to you as you sit here today?” 43 Ocean responded, “I don’t remember
everything, but I remember most of it.” 44
That evening the Government informed the Defense of its intent to intro-
duce Ocean’s videotaped forensic interviews into evidence. The following
morning the Defense objected to the evidence on grounds of hearsay and lack
of notice. After hearing argument, the military judge informed the parties she
intended to allow the videotaped interviews to be admitted under the
residual hearsay exception, Mil. R. Evid. 807. The Defense orally moved for a
23-hour continuance to consider how to respond to the evidence. The military
judge granted two hours and 45 minutes. The Defense then moved in writing
for a five-day continuance to adjust its trial strategy, file a written motion to
exclude the forensic interviews under the residual hearsay rule, and prepare
with its expert to cross-examine the forensic interviewer. The Defense noted
it had made a tactical decision not to cross-examine Ocean, to avoid opening
the door to introduction of the videotaped interviews. The military judge
denied the continuance request and, without any indication of having
reviewed either exhibit prior to ruling, admitted both videotaped interviews
(Prosecution Exhibits 10 and 11) in their entirety under Mil. R. Evid. 807.
Appellant asserts the military judge erred in admitting Prosecution
Exhibits 10 and 11. We review a ruling to admit or exclude evidence for an
abuse of discretion. 45 A military judge has “considerable discretion in
admitting evidence as residual hearsay.” 46 “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
43 R. at 449.
44 Id.
45 United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013); United States v.
Czachorowski, 66 M.J. 432, 434 (C.A.A.F. 2008).
46 United States v. Donaldson, 58 M.J. 477, 488 (C.A.A.F. 2003).
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Opinion of the Court
erroneous.” 47 “Findings of fact are affirmed unless they are clearly erroneous;
conclusions of law are reviewed de novo.” 48 It is an abuse of discretion if the
military judge (1) “predicates [her] ruling on findings of fact that are not
supported by the evidence,” (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.” 49
1. Notice
As an initial matter, Appellant argues the Government failed to give the
required pretrial notice of its intent to offer the videotaped interviews. A
statement may be admitted under the residual hearsay exception “only if,
before the trial or hearing, the proponent gives an adverse party reasonable
notice of the intent to offer the statement and its particulars, including the
declarant’s name and address, so that the party has a fair opportunity to
meet it.” 50 On its face, this language appears to require notice of both the
statement itself and the party’s intent to offer it into evidence. However, our
superior court in United States v. Czachorowski, noting a split among Article
III courts on this issue, construed the rule’s language to require only “(1)
advance notice (2) of the statements (3) to allow the adverse party to challenge
the statements’ admission and substance.” 51 In other words, the court held
the notice requirement “applies to the statements, not to the means by which
the proponent intends to seek admission of those statements.” 52
The military judge admonished the Government for failing to give notice
of its intent to offer the videotaped interviews prior to trial so that the matter
could have been litigated before seating members; however, she concluded
the rule’s notice requirement was met under Czachorowski. 53 She found the
Defense had received the videotaped forensic interviews in discovery almost a
year prior to trial, had been provided an expert to assist in evaluating them,
and had received notice of the Government’s trial witnesses, which included
47 United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010).
48 Czachorowski, 66 M.J. at 434.
49 United States v. Commisso, 76 M.J. 315, 321 (C.A.A.F. 2017) (citations omit-
ted).
50 Mil. R. Evid. 807(b) (emphasis added).
51 Czachorowski, 66 M.J. at 435 (emphasis added).
52 Id.53 R. at 632, 645.
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the forensic interviewer. Thus, despite the Government’s lack of pretrial
notice of its intent to offer the videotaped interviews at trial, she concluded
the Defense had received “more than a fair opportunity to prepare in advance
of trial to confront these statements and to consider the matter that they may
be admitted into this court.” 54
We find the military judge’s conclusion consistent with the intentionally
“flexible” notice requirement adopted in Czachorowski. 55 But we note that in
Czachorowski, the trial defense counsel “admitted that he had known about
the statement, and trial counsel’s intent to seek admission of those statements,
since the case’s inception.” 56 We therefore reject the Government’s contention
during oral argument that the Czachorowski test was satisfied by the mere
disclosure of the videotaped interviews to the Defense during pretrial
discovery. Here, however, Appellant had not only received the evidence, but
had also been granted a forensic psychologist specifically to “prepare and
address the testimony and interviews—forensic or otherwise—of the alleged
victims in this case.” 57 Thus, the Defense was sufficiently in a position “to
challenge the statements’ admission and substance” 58 when the Government
announced its intent to offer them after Ocean’s in-court testimony.
2. Analysis of the Military Judge’s Admissibility Ruling
The residual hearsay exception is intended to “be used very rarely and
only in exceptional circumstances.” 59 It allows for the admission of otherwise
excludable hearsay statements, even if not specifically covered by another
hearsay exception, provided the following conditions are met:
(1) the statement has equivalent circumstantial guarantees
of trustworthiness;
(2) it is offered as evidence of a material fact;
54 R. at 646.
55 Czachorowski, 66 M.J. at 435.
56 Id. at 434 (emphasis added).
57 App. Ex. XVI at 7.
58 Czachorowski, 66 M.J. at 435.
59 Id. at 435 n.6 (quoting S. Rep. No. 1277 (1974), as reprinted in 1974
U.S.C.C.A.N. 7051, 7066).
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(3) it is more probative on the point for which it is offered
than any other evidence that the proponent can obtain through
reasonable efforts; and
(4) admitting it will best serve the purposes of these rules
and the interests of justice. 60
Our superior court has summarized these requirements as “(1) materiality,
(2) necessity, and (3) reliability.” 61
Materiality “is a multi-factored test looking at the importance of the issue
for which the evidence was offered in relation to the other issues in this case;
the extent to which the issue is in dispute; and the nature of the other
evidence in the case pertaining to th[at] issue.” 62
The necessity prong “essentially creates a best evidence requirement,”
albeit one applied more liberally to the statements of child victims relating
the details of abusive events. 63 “This prong may be satisfied where a witness
cannot remember or refuses to testify about a material fact and there is no
other more probative evidence of that fact.” 64 While residual hearsay may be
“somewhat cumulative, it may be important in evaluating other evidence and
arriving at the truth so that the ‘more probative’ requirement cannot be
interpreted with cast iron rigidity.” 65
Reliability is determined through the weighing of “particularized guaran-
tees of trustworthiness . . . drawn from the totality of circumstances that
surround the making of the statement and that render the declarant
particularly worthy of belief.” 66 These include such factors as the age and
mental state of the declarant; the spontaneity and repetition of the state-
ment; the circumstances under which the statement was made; whether
suggestive questioning was used; the use of terminology unexpected of a child
60 Mil. R. Evid. 807(a).
61 United States v. Kelley, 45 M.J. 275, 280 (C.A.A.F. 1996) (citations omitted).
62United States v. Ellerbrock, 70 M.J. 314, 318 (C.A.A.F. 2011) (citations and
internal quotation marks omitted).
63 Kelley, 45 M.J. at 280–81 (citations omitted).
64United States v. Wellington, 58 M.J. 420, 425 (C.A.A.F. 2003) (citations omit-
ted).
65 Kelley, 45 M.J. at 280 (quoting United States v. Shaw, 824 F.2d 601, 610 (8th
Cir. 1987)).
66 Idaho v. Wright, 497 U.S. 805, 820 (1990).
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of similar age; the lack of motive to fabricate; and whether the statement is
corroborated by other evidence. 67
Here, after the Government announced its intent to offer the videotaped
interviews, the Defense objected, and the military judge heard argument on
the objection. She then informed the parties that she anticipated the residual
hearsay factors would be satisfied and that she would allow the Government
to elicit foundational testimony from the forensic interviewer. When the
Defense requested that the military judge review the videos during a long
recess prior to ruling on their admissibility, the trial counsel responded that
“the court’s already ruled as to what foundation we need to lay. . . . I don’t
know that the content of the videos is determinative of that.” 68 After the
recess, the Defense moved for a continuance and an evidentiary hearing to
litigate whether the interviews were admissible under the residual hearsay
rule. 69 Among other things, the Defense argued that:
the court must watch the videos before making that determina-
tion. We would even like to be able to take clips of those videos
and be able to point those things out. We just haven’t had the
time in the close to three hours that we’ve had since we broke
last to be able to point out those areas where the Defense
would challenge those circumstantial guarantees of trustwor-
thiness that I believe the Government would be trying to point
out. 70
The military judge denied the Defense requests. She made a preliminary
ruling based principally on what she had observed during Ocean’s in-court
testimony, 71 conditioned it on the Government eliciting appropriate
foundational testimony from the forensic interviewer, and subsequently
admitted both videotaped interviews in their entirety. She did so without
actually watching the interviews.
67 Wright, 497 U.S. at 821–22; United States v. Donaldson, 58 M.J. 477, 488
(C.A.A.F. 2003); United States v. McGrath, 39 M.J. 158, 166–67 (C.M.A. 1994).
68 R. at 638.
69 App. Ex. LII; R. at 638-43.
70 R. at 641.
71 The military judge found that during her testimony Ocean appeared articulate,
was not crying, and was not overly emotional; that her answers were short; and that
she kept strict eye contact with her Article 6(b) representative, who was placed in a
position in the gallery to ensure that she could testify fully. R. at 649.
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The only findings the military judge made as to the contents of the vide-
os—the actual out-of-court statements sought to be admitted—were
essentially educated guesses as opposed to factual findings. She determined
the interviews were material because they “included, what the court
understands, are the victim’s statements concerning the accused’s sexual
abuse of her as charged by the Government.” 72 Regarding their necessity, she
found the interviews were “likely to be more probative” than Ocean’s in-court
testimony because Ocean “testified to fewer offenses and in less detail than
what is expected to be shown in [the] forensic interviews.” 73 Regarding their
reliability, she stated that she “expect[ed] the forensic interviews to show
that [Ocean’s] statements were made in a safe environment specifically made
for children to make them comfortable . . . [and] anticipate[d] that the
statements were taken by a professional who is trained to speak to children
and to avoid suggestibility or argument.” 74
For several reasons, we conclude that the military judge abused her
discretion by ruling in this manner on the admissibility of the statements
under the residual hearsay rule. First, the military judge’s analysis of the
content and context of the statements themselves was ultimately grounded
on speculative assumptions about what the videos contained, as opposed to
being predicated on actual findings of fact supported by the evidence.
Second, addressing the statements’ admissibility in this manner resulted
in her application of the various prongs of the residual hearsay rule to the
“facts” in a way that is clearly unreasonable. In determining the statements’
necessity, for example, the military judge made factual findings about
Ocean’s demeanor and testimony during trial and heard foundational
testimony from the forensic interviewer about her training and interview
protocols. But without factual findings based on a review of the interviews
themselves, the military judge had no basis upon which to conclude as a
matter of law that Ocean’s statements during the interviews were actually
“more probative on the point for which [they were] offered than any other
evidence that the proponent [could] obtain through reasonable efforts.” 75 A
military judge cannot possibly weigh the probative value of out-of-court
72 R. at 648.
73 R. at 649.
74 R. at 650.
75 Mil. R. Evid. 807(a)(3).
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Opinion of the Court
statements vis-à-vis in-court testimony (or other evidence) without knowing,
and addressing, what those statements actually are.
Third, in ruling in this manner on the admissibility of the statements, the
military judge failed to consider important facts—namely, what Ocean
actually said during each interview. The contours of what makes a fact
“important” enough to constitute an abuse of discretion if not “considered” are
not clearly defined. 76 But it is difficult to imagine facts more important to
consider in an admissibility analysis under the residual hearsay rule than
the content of the statements sought to be introduced. To assess their
reliability, for example, the statements must be analyzed for particularized
guarantees of trustworthiness, based on the totality of the circumstances
under which they were made. Here, statements made during two interviews
conducted over 14 months apart were addressed collectively for, at best,
generalized guarantees of trustworthiness based on the forensic interviewer’s
testimony about how she conducted the interviews. The military judge’s
analysis did not take into account such critical, material facts as what Ocean
actually stated during each interview, whether she used any terminology
unexpected of a child of similar age, whether there appeared to be suggesti-
bility concerns during either interview, or whether her statements during the
two interviews were corroborated by other evidence or even by each other.
The failure to give individualized consideration to each interview—let
alone the statements within each interview—led the military judge to
overlook significant issues that affect the analysis under the residual hearsay
rule. While the necessity prong is generally applied more liberally to
statements of child victims, it is nevertheless true that “the direct testimony
of the hearsay declarant ordinarily would be judged the most probative
evidence.” 77 Here, the general similarities between what Ocean alleged
76 Compare Commisso, 76 M.J. at 317–18, 323 (finding abuse of discretion in
denial of mistrial motion on grounds of member bias where military judge did not
address panel member’s statements indicating bias and three panel members’
attendance at Sexual Assault Review Board meetings discussing victim’s allega-
tions); and Solomon, 72 M.J. at 180 (finding abuse of discretion in admission of
evidence under Mil. R. Evid. 413 where military judge did not reconcile or mention a
police report showing the accused was in custody at time of alleged assaults and gave
little or no weight to his prior acquittal of the offenses); with United States v. Becker,
No. 21-0236, ___ M.J. ___, 2021 CAAF LEXIS 844 (C.A.A.F. Sept. 14, 2021) (finding
no abuse of discretion in denial of motion to admit statements under forfeiture by
wrongdoing where military judge did not address immediate circumstances and
premeditated manner of accused’s alleged murder of declarant).
77 Czachorowski, 66 M.J. at 436.
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Opinion of the Court
during the first interview and what she testified to at trial highlight the lack
of any reasoned basis for the military judge’s speculative assumption that the
forensic interviews were “likely to be more probative” than Ocean’s in-court
testimony.
More concerning is the military judge’s failure to address particularized
guarantees of trustworthiness, especially with respect to the second
interview. There, Ocean changed her statements about Appellant wiping her
in the bathroom after she used the toilet into an allegation that he digitally
penetrated her on a bed; she alleged for the first time that he had put his
mouth on her vaginal area, while failing to disclose when asked that someone
else (her neighbor) had touched her private parts in this manner; she used
adult terminology to describe Appellant’s alleged conduct as “abusing”; and
she referred to discussions she had been having with a therapist working
down the hall from the forensic interviewer “who taught [her] about abuse
and what [Appellant] did to [her] and what’s wrong and what’s right.” 78
These facts dramatically impact the analysis as to whether Ocean’s state-
ments during the second interview are sufficiently reliable to be admitted
under Mil. R. Evid. 807, and none would be apparent without reviewing, and
addressing, the videotaped interview itself.
Applying the appropriate deference to her ruling, we find that the mili-
tary judge’s failure to address or reconcile the contents of the videotaped
interviews or give due weight to the statements Ocean made therein, for
which admission was sought, undermined her analysis under the residual
hearsay rule such that the decision to admit Prosecution Exhibits 10 and 11
was an abuse of discretion. 79
3. Prejudice
Having found error, we test for prejudice. Appellant argues the error is
constitutional because admission of the exhibits after Ocean’s testimony
deprived him of his constitutional rights. We disagree, and find Appellant’s
rights to confrontation and due process were satisfied when Ocean testified
and thereafter remained subject to recall for further examination by either
party during the trial, including the Defense. 80 For non-constitutional
78 Pros. Ex. 11; App. Ex. LX at 22.
79 See Solomon, 72 M.J. at 182.
80 See United States v. Deland, 22 M.J. 70, 72 (C.M.A. 1986) (finding that where
the alleged victim “testified at the trial and could be observed by the trier of fact . . .
the reception of her extrajudicial statement did not violate appellant’s sixth
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evidentiary errors, the test for prejudice “is whether the error had a
substantial influence on the findings.” 81 In conducting this analysis, we weigh
“(1) the strength of the Government’s case, (2) the strength of the defense
case, (3) the materiality of the evidence in question, and (4) the quality of the
evidence in question.” 82
With respect to Specification 2 of Charge I, Prosecution Exhibit 11 is the
only evidence supporting the allegation that Appellant penetrated Ocean’s
vulva with his mouth, which Ocean denied during her in-court testimony and
did not mention in her other out-of-court statements that were admitted at
trial. At oral argument, the Government conceded that if the Court found
Prosecution Exhibit 11 was erroneously admitted, the error would be
prejudicial with respect to Appellant’ conviction of this specification. We
agree, and conclude the erroneous admission of this evidence necessitates
setting aside the finding of guilty for Specification 2 of Charge I, which we
accomplish in our decretal paragraph.
In weighing the above factors with respect to Appellant’s other convic-
tions for Specification 3 (penetrating Ocean’s vulva with his finger) and
Specification 6 (causing her to touch his genitalia) of Charge I, we reach the
opposite conclusion. The Government’s case with respect to these specifica-
tions was not strong, as it rested essentially on Ocean’s testimony and out-of-
court statements, with additional evidence bearing on Appellant’s credibility,
intent, and consciousness of guilt. 83 The Defense case was not strong either,
consisting principally of Appellant testifying about his difficult relationship
amendment right of confrontation”) (citing United States v. LeMere, 22 M.J. 61(C.M.A. 1986); California v. Green, 399 U.S. 149 (1970)). Cf. United States v.
Gardinier, 67 M.J. 304, 305–07 (C.A.A.F. 2009) (using constitutional standard to test
for prejudice where trial judge admitted child victim’s out-of-court statements in
violation of the appellant’s confrontation right after determining she was not
available to testify at trial).
81 United States v. Kohlbek, 78 M.J. 326, 334 (C.A.A.F. 2019) (internal quotation
marks and citation omitted).
82 Id. (quoting United States v. Norman, 74 M.J. 144, 150 (C.A.A.F. 2015)).
83 The evidence supports that Appellant would hit himself when he felt he had
disappointed the family, lied about doing so, and called himself a monster during
arguments with Ms. Bravo, who testified he had a sexual proclivity to have her taste
his ejaculate after intercourse.
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with Ms. Bravo, his care for the children which included bathing and wiping
them, and his denial of Ocean’s allegations. 84
While Ocean’s statements to Ms. Charlie are material these offenses, the
quality of their support to the Government’s case is undermined in certain
respects. Ocean’s statements during the first interview about touching
Appellant’s penis are relatively consistent with her in-court testimony;
however, her claim that Ms. Bravo walked in when this occurred, said “stop,”
and told Appellant to “go somewhere else and don’t get by my kids again”
(which Ms. Bravo denied doing or saying) undermines the credibility of the
allegation. Moreover, Ocean’s statements about digital penetration during
this interview place the activity in the context of Appellant wiping her in the
bathroom after she used the toilet, 85 which supports Appellant’s parental-
care defense and undermines her claim during the second interview that
Appellant penetrated her with four fingers on her parents’ bed. Similarly,
Ocean’s statements during the second interview about touching Appellant’s
penis are inconsistent and more exaggerated in comparison with both the
first interview and her trial testimony, which also undermines her credibility.
Accordingly, we conclude the erroneous admission of the videotaped
interviews alone did not have a substantial influence on the guilty findings
for Specifications 3 and 6 of Charge I.
B. Denial of Defense Motion under Mil. R. Evid. 412
During the Government’s opening statement, the trial counsel told the
members:
We invite you to listen to how [Ocean] describes these acts,
what words she uses, how it happened, how it felt. Because
when you hear how she describes it in her own words, it will al-
low you to understand that what she is describing are things
she actually experienced. 86
In response, during his opening statement, Appellant’s civilian defense
counsel [CDC] began to discuss the game of “kiss each other’s privacy” in
84 The Defense also called several character witnesses who opined that Appellant
was a truthful person, despite not knowing about asserted instances of his
dishonesty.
85 Ocean’s drawing and statements to her therapist, Ms. Bailey, also place the
allegation in this context.
86 R. at 402 (emphasis added).
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Opinion of the Court
which Ocean had experienced her seven-year-old neighbor putting her mouth
on Ocean’s “private.” The Government objected and asserted lack of notice
under Mil. R. Evid. 412. During the Article 39(a) session, CDC argued the
Defense should be allowed to rebut the Government’s position that “the only
place that [Ocean] could learn this from is [Appellant]. The Defense has to be
able to show there’s another source for this information that’s coming out. It
is not [Mil. R. Evid.] 412, it is [Mil. R. Evid.] 608.” 87
The military judge found the evidence was covered by Mil. R. Evid. 412,
the issue had not been litigated, and the required notice under the rule had
not been given. She sustained the Government’s objection and instructed the
Defense not to mention the issue further.
Subsequently, the Defense moved the court to allow it to elicit the “priva-
cy game” evidence during its cross-examination of Ms. Bravo, who testified
about reporting Ocean’s allegations to the authorities and then taking her to
be forensically interviewed. CDC argued the evidence that the neighbor had
placed her lips/mouth on Ocean’s private parts was constitutionally required
under Mil. R. Evid. 412 because it would rebut the impression left by the
Government “that the only way that [Ocean] learned about this information
is through experiences exclusively with [Appellant].” 88 Rather, it would show
that Ocean’s behavior “could have been learned from an outside source. . . .
Because, otherwise, [the members would] go back to the deliberation room
and say, ‘Where else could she have learned this? Where else would a 5-, 6-,
7-, 8-year-old learn this?’ ” 89
The military judge denied the motion, concluding that it was untimely
and the Defense had “not articulated a theory of relevance that place[d] it
into the constitutional realm.” 90 She found there was no impression left with
the members that the only place Ocean could have learned the behavior was
from Appellant, and that the Defense was not arguing it was relevant to
Ocean’s credibility.
The Government then introduced into evidence, over Defense objection,
the videotaped forensic interviews (Prosecution Exhibits 10 and 11) and
published them in open court. During the second interview, Ocean made the
87 R. at 423.
88 R. at 596.
89 R. at 597.
90 R. at 608.
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new allegation that Appellant had put his mouth on the part she pees from
and said that “it felt gross.” 91 When subsequently asked during the same
interview, “Was there ever a time anyone else asked to see any private parts
of your body,” Ocean responded, “No.” 92 When asked, “Was there ever a time
someone else [other than Appellant] ever touched any private parts of your
body?” Ocean again responded, “No.” 93
In conjunction with introducing this evidence, the Government elicited
testimony from the forensic interviewer, Ms. Charlie, that an aspect of
conducting forensic interviews is “to explore alternative hypotheses,” to find
out whether the alleged behavior has “ever happened to [the child] with
someone else.” 94 Following that, the Government elicited testimony from its
expert in forensic interviewing, Dr. Foxtrot, that such alternative hypotheses
are important, in my view, to explore sources of a child’s
knowledge. So if a child did provide information that suggested
exposure from other sources, that would be information about
the sources of a child’s knowledge, and it might impact upon
how somebody examined, you know, why they know what they
know, where is it coming from. So, I mean, that is the basis of,
in part, of why we ask those questions. It is, also, to screen for
additional forms of maltreatment, but it is also just to under-
stand, why does a five-year-old know something, or where is
that coming from. 95
In light of this additional evidence, CDC moved the military judge to
reconsider her previous Mil. R. Evid. 412 ruling. He argued there was good
cause under the rule’s constitutional exception to question Dr. Foxtrot about
the alternative hypothesis that Ocean had gained the experiential knowledge
of having someone’s mouth placed on her vaginal area not from Appellant,
but from her seven-year-old neighbor. He argued that “if in this case there
was an external influence or external game where this individual could have
91 Pros. Ex. 11; App. Ex. LX at 19.
92 Pros. Ex. 11; App. Ex. LX at 23.
93 Id.
94 R. at 1116.
95 R. at 1189.
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learned about the behavior from someone else, that could influence what was
done in the interview.” 96
He also argued the evidence was admissible under Mil. R. Evid. 608
because it contradicted Ocean’s statements during the interviews that left a
false impression that no one else had ever inappropriately touched her—
specifically, by placing their mouth on her private parts. He argued that
Ms. Charlie’s testimony suggested it was important “to eliminate the
possibility that this otherwise abnormal behavior, not typically known by a
five-year-old, could have been learned only from the accused in this particular
case.” 97 Because the Defense had been precluded from eliciting the evidence
from other witnesses pursuant to the court’s earlier Mil. R. Evid. 412 ruling,
he argued he should be allowed to explore the issue with Dr. Foxtrot who
emphasized the importance of exploring alternative hypotheses “in the
context of the forensic interview. They must know why the child knows what
they know, and they must know where that information has come from.” 98
The military judge denied the motion for reconsideration. Adopting her
prior ruling, she concluded the evidence was not constitutionally required
because it was not “relevant to the issues that are before the members,”
which she found concerned “the issue of suggestibility, not learned behav-
ior.” 99 She further found the evidence was “not material or important to the
issue for which the evidence is offered in relation to other issues in the case,
the other evidence that the Defense has and has been able to present to the
members.” 100
Appellant asserts the military judge erred in denying the Defense’s mo-
tion to admit this evidence under Mil. R. Evid. 412. We review rulings to
admit or exclude evidence for an abuse of discretion. 101
1. Law
“Evidence offered to prove an alleged victim engaged in other sexual
behavior” is, with limited exceptions, generally not admissible at a trial
96 R. at 1202.
97 R. at 1203–04.
98 R. at 1206.
99 R. at 1207.
100 Id.
101 Ellerbrock, 70 M.J. at 317.
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Opinion of the Court
involving a sexual offense. 102 A party intending to offer such evidence under
an exception to this rule must “file a written motion at least 5 days prior to
entry of pleas specifically describing the evidence and stating the purpose for
which it is offered unless the military judge, for good cause shown, requires a
different time for filing or permits filing during trial.” 103 If after a hearing the
military judge determines that the evidence falls within an exception to this
rule and the probative value of the evidence outweighs the danger of unfair
prejudice to the alleged victim’s privacy, the evidence is admissible subject to
any parameters specified by the military judge and the Mil. R. Evid. 403
balancing test. 104
One of the rule’s exceptions is for “evidence the exclusion of which would
violate the accused’s constitutional rights.” 105 This exception encompasses an
accused’s Sixth Amendment right to confront and cross-examine the
witnesses against him, which includes the right “to impeach, i.e., discredit
the witness.” 106 Evidence, provided it passes the Mil. R. Evid. 403 balancing
test, is admissible under this exception if it is relevant, material, and
favorable (i.e., “vital”) to the defense, no matter how embarrassing it may be
to the alleged victim. 107 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. 108 Materiality “is a multi-factored test looking
at the importance of the issue for which the evidence was offered in relation
to the other issues in this case; the extent to which the issue is in dispute;
and the nature of the other evidence in the case pertaining to th[at] issue.” 109
To pass the Mil. R. Evid. 403 balancing test, the evidence’s probative value
must not be substantially outweighed by such dangers as “harassment,
102 Mil. R. Evid. 412(a)(1). “Sexual behavior” includes “any sexual behavior not
encompassed by the alleged offense.” Mil. R. Evid. 412(d).
103 Mil. R. Evid. 412(c)(1)(A).
104 Mil. R. Evid. 412(c).
105 Mil. R. Evid. 412(b)(3).
106 Ellerbrock, 70 M.J. at 318 (quoting Olden v. Kentucky, 488 U.S. 227, 231
(1988)).
107 United States v. Banker, 60 M.J. 216, 222–23 (2004), abrogated by United
States v. Gaddis, 70 M.J. 248, 256 (C.A.A.F. 2011).
108 Mil. R. Evid. 401.
109 Ellerbrock, 70 M.J. at 318 (citations and internal quotation marks omitted).
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prejudice, confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.” 110
For specific instances of conduct as it relates to a witness’ character for
truthfulness, Mil. R. Evid. 608(b) provides that “the military judge may, on
cross-examination, allow [such instances] to be inquired into if they are
probative of the character for truthfulness or untruthfulness” of the
witness. 111 Extrinsic evidence “is not admissible to prove specific instances of
a witness’s conduct in order to attack or support the witness’s character for
truthfulness.” 112 However, the doctrine of “impeachment by contradiction,”
does allow “showing the tribunal the contrary of a witness’ asserted fact, so
as to raise an inference of general defective trustworthiness.” 113
2. Analysis
Just as the Government failed to give pretrial notice of its intent to admit
the videotaped interviews, the Defense gave no notice under Mil. R. Evid. 412
of its intent to elicit the evidence of Ocean’s “other sexual behavior”: her
game of “kiss each other’s privacy” with her neighbor. So once again, the
military judge was forced to rule on a crucial motion mid-trial, without the
benefit of a pretrial evidentiary hearing or formal briefing from the parties.
However, the rule grants the military judge authority to entertain such
motions during trial “for good cause shown.” 114 In addition, as we have
previously found, the Government can through its own actions at trial open
the door to Mil. R. Evid. 412 evidence that might not otherwise be admissible
under the rule. 115 Specifically, if the Government creates a factual inference
through its presentation of evidence, “the defense must be allowed to rebut
that inference. To do otherwise denies the appellant his right to mount a
defense, and allows the Government to meet its burden based on an
incomplete description of events.” 116
110 Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
111 Mil. R. Evid. 608(b).
112 Id.113 United States v. Banker, 15 M.J. 207, 210 (C.M.A. 1983).
114 Mil. R. Evid. 412(c)(1)(A).
115 See United States v. Villanueva, No. 201400212, 2015 CCA LEXIS 90 (N-M.
Ct. Crim. App. Mar. 19, 2015) (unpublished).
116 Id. at *9-10.
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We find that is the case here. Irrespective of whether the evidence of
Ocean’s “privacy game” with her neighbor was relevant at the time of opening
statements, it was certainly relevant by the time the Government elected to
introduce and publish Ocean’s second videotaped interview (Prosecution
Exhibit 11), during which Ocean stated that Appellant had put his mouth on
her vaginal area and subsequently denied that anyone else had ever touched
or asked to see her “private parts.” These statements create precisely the
inference that the Defense had expressed concerns about with the Govern-
ment’s opening statement: that given her young age, the members would
infer that the only way Ocean could have learned and been able to testify
about such behavior was through Appellant’s alleged misconduct.
The Government then reinforced the inference it created through
Ms. Charlie’s and Dr. Foxtrot’s testimony about the importance of “exploring
alternative hypotheses” during forensic interviews, in order to examine the
sources of a child’s knowledge and understand why a five-year-old knows
what she knows. At the very least, this testimony implied that Ms. Charlie’s
interviews of Ocean were forensically sound because there were no alterna-
tive hypotheses to explore. In fact, the “privacy game” evidence suggests the
opposite is true: the forensic interviews are potentially not as sound as they
appear because at least one known alternative hypothesis was never
explored—that Ocean’s knowledge of someone putting their mouth on her
vaginal area was drawn from her interaction with her neighbor. In context,
that alternative hypothesis is an important one, because it could explain how
Ocean acquired the knowledge and sensory experience of such behavior
wholly independent of Appellant’s alleged conduct.
By this time in the trial, the evidence of the “privacy game” was also
relevant to Ocean’s credibility. When the Government admitted Prosecution
11, it placed squarely before the members Ocean’s denials that anything like
what she had been describing (which included both digital penetration and
oral copulation) had ever happened with anyone other than Appellant—
namely, that anyone had ever touched or asked to see her “private parts.” 117
These denials are directly contradicted by Ocean’s statements to Ms. Bravo
about the game of “kiss each other’s privacy,” during which her neighbor had
kissed her “private” with a closed mouth and she had kissed the girl’s
117 Pros. Ex. 11; App. Ex. LX at 23.
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“backside.” 118 Because the Government’s evidence (Prosecution Exhibit 11)
raised this issue, the Defense was entitled to use the other evidence for
impeachment by contradiction: “showing the tribunal the contrary of a
witness’ asserted fact, so as to raise an inference of general defective
trustworthiness.” 119
As such, we find clearly erroneous the military judge’s finding on the
motion for reconsideration that the “privacy game” evidence was not relevant,
material, or important to the issues before the members, which she found
solely concerned suggestibility as opposed to learned behavior. While
suggestibility was indeed an issue explored by the Defense, the issue of
learned behavior, which the Government’s evidence had placed in issue, had
not been explored precisely because the military judge’s earlier Mil. R. Evid.
412 ruling had foreclosed the Defense from doing so. We find the circularity
of such analysis to be clearly unreasonable.
We also find clearly erroneous and unsupported by the evidence the
military judge’s determination, adopted from her prior ruling, that the
Government’s evidence left no impression that the only place Ocean could
have learned the alleged behavior was from Appellant. Ocean’s statements in
Prosecution Exhibit 11 create exactly this impression, which the “privacy
game” evidence reveals to be not only misleading but false. This impression
was then reinforced through the forensic interviewer’s and the Government
expert’s testimony about exploring alternative hypotheses, when there was a
known alternative hypothesis which should have been but, unbeknownst to
the court-martial members, was never explored. Thus, not only does the
evidence of this particular alternative explanation for Ocean’s knowledge
color the trustworthiness of the forensic interviews, but her contradictory
statements impact the overall credibility of her allegations. The evidence was
118App. Ex. LI. While the Government quibbled during oral argument about
what “private” may mean, we find that in distinguishing between “private” and
“backside” Ocean provided sufficient context to raise this contradiction.
119 Banker, 15 M.J. at 210. While we understand such substantive impeachment
may not have been accomplished through cross-examining the witness on the stand
at the time of the motion for reconsideration—Ms. Foxtrot—we conclude that based
on the evidence and arguments the military judge had before her at that time, her
ruling foreclosed the Defense from pursuing the matter further with either the
Government’s witnesses or its own. See Mil. R. Evid. 103(b) (“Once the military judge
rules definitively on the record admitting or excluding evidence, either before or at
trial, a party need not renew an objection or offer of proof to preserve a claim of error
for appeal.”).
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therefore relevant, material, and vital to Appellant’s defense, and its
probative value in these areas far outweighed any danger of unfair prejudice.
Applying the appropriate deference to the military judge’s ruling, we
conclude this evidence was of such clear importance to issues central to the
trial and to Appellant’s defense that excluding it as not constitutionally
required was an abuse of discretion.
3. Prejudice
Because we conclude the evidence was constitutionally required, its
exclusion is constitutional error. Consequently, “we must test the error to see
if it was harmless beyond a reasonable doubt—whether there is a reasonable
possibility that the evidence [or error] complained of might have contributed
to the conviction.” 120 We do so by applying five nonexclusive factors: “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.” 121
We conclude the exclusion of this Mil. R. Evid. 412 evidence was not
harmless. Ocean’s testimony and out-of-court statements were the heart of
the Government’s case, which was not strong. The “privacy game” evidence
was a principal means of impeaching both the reliability of the videotaped
interviews and the credibility of the Government’s central witness. Without
question, the evidence was material to Specification 2 of Charge I, as it
contradicted Ocean’s statements in a way specific to her allegation in
Prosecution Exhibit 11 that Appellant had put his mouth on her vulva (and
no one else ever had). As, in fact, this is exactly what the excluded evidence
showed the neighborhood girl had done to her—which would explain how
Ocean might be both aware of and able to describe such an experience—we
conclude there is a reasonable possibility that the erroneous exclusion of the
evidence might have contributed to Appellant’s conviction of this specifica-
tion.
We further find the evidence impeaches Ocean’s overall credibility in a
way that impacts Appellant’s other convictions. Similar to prior inconsistent
statements through which, “[b]y showing self-contradiction, the witness can
120 Ellerbrock, 70 M.J. at 320 (citations and internal quotation marks omitted).
121 Van Arsdall, 475 U.S. at 684 (citations omitted).
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Opinion of the Court
be discredited as a person capable of error,” impeachment by contradiction of
a witness’ asserted fact raises “an inference of general defective trustworthi-
ness.” 122 Appellant’s defense was that suggestion from Ms. Bravo or others
(like Ms. Kilo) had caused Ocean to turn innocuous or non-criminal conduct—
bathing, wiping, even playing with a neighbor’s child—into abuse allegations
whose trustworthiness was generally defective. The “privacy game” evidence
calls into question Ocean’s statements that she had never before had anyone
touch or ask to see her “private parts,” which during the second interview
included Appellant not only putting his mouth on her vaginal area but also
digitally penetrating her vagina with four fingers on a bed (as opposed to
wiping her after she used the toilet as she had previously stated). Had the
court-martial members been aware of the apparent falsity of her denials that
similar conduct had occurred to her outside the presence of Appellant, we
find that “[a] reasonable jury might have received a significantly different
impression of [Ocean’s] credibility.” 123 Thus, under these circumstances, we
conclude there is a reasonable possibility that the erroneous exclusion of the
evidence might also have contributed to Appellant’s convictions of Specifica-
tions 3 and 6 of Charge I.
Accordingly, we find the error was not harmless beyond a reasonable
doubt with respect to any of Appellant’s convictions, which we set aside in our
decretal paragraph.
C. Admission of Evidence Under Mil. R. Evid. 803(4)
Appellant asserts the military judge erred in admitting, over his trial
defense counsel’s hearsay objection, both the testimony of a pediatric nurse
practitioner, Ms. Williams, and an excerpt of her report (Prosecution Exhibit
2) regarding Ocean’s statements to her, under the hearsay exception for
statements made for medical diagnosis or treatment, Mil. R. Evid. 803(4). We
review rulings to admit or exclude evidence for an abuse of discretion. 124
Mil. R. Evid. 803(4) excludes from the rule against hearsay “[a] statement
that—(A) is made for—and is reasonably pertinent to—medical diagnosis or
treatment; and (B) describes medical history; past or present symptoms or
sensations; their inception; or their general cause.” 125 Our superior court has
122 Banker, 15 M.J. at 210.
123 Ellerbrock, 70 M.J. at 321 (citations and internal quotations omitted).
124 Solomon, 72 M.J. at 179.
125 Mil. R. Evid. 803(4).
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Opinion of the Court
construed this language to require two conditions to be satisfied: “first the
statements must be made for the purposes of ‘medical diagnosis or treat-
ment’; and second, the patient must make the statement ‘with some
expectation of receiving medical benefit for the medical diagnosis or
treatment that is being sought.’” 126 This test is in accordance with the
exception’s rationale: “the self-interested motivation to speak the truth to a
treating physician . . . in order to receive proper care and the necessity of the
statement for a diagnosis or treatment.” 127
1. Analysis
The military judge found that Ocean’s statements to Ms. Williams “fit
under the exception, [Mil. R. Evid.] 803(4), statements made for medical
diagnosis or treatment.” 128 On the exception’s subjective prong, while the
military judge did not make a finding as to Ocean’s expectation in speaking
with Ms. Williams, she did note Ms. Williams’ testimony that she “informs
the child that she’s going to have a checkup to make sure that she’s okay and
everything is okay with her body.” 129 “A child-victim’s expectation of receiving
medical treatment . . . may be established by the testimony of the treating
medical professionals,” as long as the record “support[s] the military judge’s
determination that the child had the requisite understanding and expectation
of a medical benefit to satisfy the subjective prong.” 130 We find the military
judge’s implicit finding that Ocean “had some expectation of treatment when
she talked to [Ms. Williams]” 131 is supported by Ms. Williams’ testimony.
126 United States v. Rodriguez-Rivera, 63 M.J. 372, 381 (C.A.A.F. 2006) (quoting
United States v. Edens, 31 M.J. 267, 269 (C.M.A. 1990)).
127 United States v. Quigley, 35 M.J. 345, 347 (C.M.A. 1992). While the court in
Quigley required that the statement also be made “near the pivotal time of events,”
id. at 347, the court has since analyzed Mil. R. Evid. 803(4) under the two-pronged
test described above, which does not include such a temporal requirement.
Rodriguez-Rivera, 63 M.J. at 381. We therefore disagree with Appellant’s contention
that the exception requires the statements to be close in time to events at issue and
conclude that any lapse of time between the alleged abuse and the examination
during which the statements are made is simply a factor to be used in determining
whether the current two-pronged test has been satisfied.
128 R. at 494.
129 Id.
130 United States v. Hollis, 57 M.J. 74, 79–80 (C.A.A.F. 2002).
131 Rodriguez-Rivera, 63 M.J. at 381 (quoting United States v. Haner, 49 M.J. 72,
76 (C.A.A.F. 1998)).
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The issue here is with the exception’s objective prong—the necessity of
the statements for purposes of medical diagnosis or treatment—regarding
which the military judge made no specific findings. In United States v.
Gardinier, our superior court found error in the admission of a child’s
statements to a sexual assault nurse examiner [SANE] during a forensic
medical examination. 132 The SANE testified she took a patient history from
the child regarding the alleged inappropriate touching “to determine
diagnosis and treatment,” but the child had already been interviewed by law
enforcement, and the sheriff’s department was involved in arranging the
examination and, per the authorization form, received a copy of the report,
which the government then introduced at trial. 133 The court found that the
SANE, “who specialized in conducting forensic medical examinations,
performed a forensic medical exam on [the child] at the behest of law
enforcement with the forensic needs of law enforcement and prosecution in
mind.” 134
Like the court in Gardinier, we recognize that the “referral of an alleged
victim to a medical professional by law enforcement or trial counsel does not
always establish that the statements at issue were made in response to a law
enforcement or prosecution inquiry or elicited with an eye toward prosecu-
tion.” 135 Nor does delay alone negate the possibility that an examination
could be undertaken for the legitimate purposes of medical diagnosis or
treatment. 136 However, our superior court has also noted that “military
judges must remain vigilant in ensuring that the hearsay exception for
statements made for the purposes of medical diagnosis or treatment is not
used as a subterfuge.” 137
132 65 M.J. 60, 64–67 (C.A.A.F. 2007) (analyzing the issue as a violation of the
appellant’s confrontation right).
133 Id. at 66.
134 Id.
135 Id. (citing Rodriguez-Rivera, 63 M.J. at 381).
136 See Rodriguez-Rivera, 63 M.J. at 381 (upholding admission of statements
under medical hearsay exception where, after being examined by a physician at an
overseas Naval medical clinic, upon the family’s subsequent transfer back to the
United States the trial counsel arranged for the child to see a child abuse pediatri-
cian, whose purpose in examining her was to provide a second opinion regarding the
child’s health and determine if she needed any further medical or psychological
intervention).
137 Id. at 381 n.2.
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Opinion of the Court
Here, six months after arranging for Ocean to be forensically interviewed,
law enforcement arranged for Ocean to be examined at a children’s medical
center pursuant to its “physical and sexual abuse medical protocol.” 138 Ms.
Williams worked as part of the hospital’s “child advocacy resource and
evaluation team,” which specialized in seeing suspected child abuse victims
through referrals from law enforcement, child protective services, and other
agencies. 139 The authorization form Ms. Bravo signed listed the name of the
Honolulu Police Department detective assigned to the case and authorized
the release of the examination report to “the appropriate law enforcement
agency and the Office of the District Attorney having jurisdiction.” 140 After
talking to Ms. Bravo about Ocean’s allegations, Ms. Williams asked Ocean
“had anybody made [her] feel uncomfortable or touched [her] in a way that
made [her] uncomfortable?” 141 The statements she elicited and wrote in the
“patient history” section of the report contain no ongoing medical issues or
complaints, only Ocean’s allegations of inappropriate touching by Appellant
well over a year before. 142 Nevertheless, Ms. Williams took photographs
during the course of her examination, which the authorization form
acknowledged the collection of evidence might include. While Ms. Williams
testified that the purpose of her examination was “to treat,” 143 she conceded
that she did not expect to find anything she would need to treat, and as
predicted, her physical examination of Ocean revealed no injuries or
abnormal findings indicative of abuse. Per the authorization form, law
enforcement then received a copy of the report, and the Government
introduced the portion containing Ocean’s statements and elicited
Ms. Williams’ testimony about them.
Under these circumstances, we find clearly erroneous and unsupported by
the evidence the military judge’s implicit finding that Ocean’s statements to
Ms. Williams were reasonably pertinent to medical diagnosis or treatment, as
opposed to furthering a forensic medical examination in aid to law enforce-
ment. Thus, applying the appropriate deference to her ruling, we find the
138 Pros. Ex. 2 at 1; R. at 483–84, 489–92, 1064-66, 1069; App. Ex. VII at 31.
139 R. at 499–501.
140 Pros. Ex. 2 at 1.
141 R. at 505–06, 515–16; Pros. Ex. 2 at 2.
142 Pros. Ex. 2 at 2. See also section I.A.3, supra.
143 R. at 537.
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Opinion of the Court
military judge abused her discretion in finding Ocean’s statements to
Ms. Williams “fit under the exception, [Mil. R. Evid.] 803(4).” 144
2. Prejudice
Having found error, we test for prejudice. Contrary to Appellant’s asser-
tion, because both Ocean and Ms. Williams testified at trial and could be
observed by the trier of fact, we conclude the reception of Ocean’s out-of-court
statements to Ms. Williams did not violate Appellant’s confrontation right. 145
For non-constitutional evidentiary errors, the test for prejudice “is whether
the error had a substantial influence on the findings.” 146 In conducting this
analysis, we weigh “(1) the strength of the Government’s case, (2) the
strength of the defense case, (3) the materiality of the evidence in question,
and (4) the quality of the evidence in question.” 147
As discussed above, neither party’s case was strong. The Government’s
rested almost entirely on Ocean’s testimony and out-of-court statements, and
the Defense’s consisted principally of Appellant’s denial of Ocean’s allega-
tions. However, the statements made to Ms. Williams, as testified to and
memorialized in Prosecution Exhibit 2, are material to Specifications 3 and 6
of Charge I. And while the credibility of the statements is undermined by
inconsistencies with Ocean’s in-court testimony and other statements—
particularly her unique claim to Ms. Williams that Appellant’s alleged
abusive acts happened “19 or 20 times”—we find the quality of the state-
ments particularly important because they lend the imprimatur of medical
testimony to delayed claims for which other forms of corroboration are
lacking. Moreover, the trial counsel apparently shared this view, as the
Government relied extensively on the statements contained in Prosecution
Exhibit 2 during its closing argument. 148
In weighing these factors, we conclude that the erroneous admission of
Prosecution Exhibit 2 and Ms. Williams’ testimony about Ocean’s statements
to her had a substantial influence on the guilty findings for Specifications 3
144 R. at 494.
145 See Deland, 22 M.J. at 72 (citations omitted).
146 Kohlbek, 78 M.J. at 334 (internal quotation marks and citation omitted).
147 Id. (quoting Norman, 74 M.J. at 150.
148 See App. Ex. LXVI.
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Opinion of the Court
and 6 of Charge I. 149 Accordingly, we find prejudice to these findings and set
them aside in our decretal paragraph.
D. Cumulative Error
Finally, we address the doctrine of cumulative error, “under which a
number of errors, no one perhaps sufficient to merit reversal, in combination
necessitate the disapproval of a finding.” 150 Here, “[w]e cannot 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[s].” 151 This was a contested case where Appellant consistently
denied the allegations; there were no corroborating eyewitnesses for Ocean’s
allegations; the report was delayed and made under suggestive circumstanc-
es; the allegations made to authority figures changed over time and in
significant ways that tend to undermine their credibility; and important
information for assessing the credibility of the complaining witness was
withheld from the trier of fact. We have found three errors and concluded
that each caused sufficient prejudice to require setting aside one or more of
Appellant’s convictions. Even if we were to assume one or more of these
errors did not require such action, we conclude that under the circumstances
of this case, the confluence of the errors requires setting aside all of
Appellant’s convictions.
III. CONCLUSION
The findings and sentence are SET ASIDE. The record is returned to the
Judge Advocate General of the Navy. A rehearing is authorized.
Judges HOUTZ and MYERS concur.
149 We conclude the error did not have a substantial influence on the guilty
finding for Specification 2 of Charge I, as the statements Ocean made to Ms.
Williams did not contain her later allegation that Appellant had put his mouth on
her vaginal area.
150 United States v. Banks, 36 M.J. 150, 170–71 (C.A.A.F. 1992) (quoting United
States v. Walters, 4 C.M.A. 617, 635, 16 C.M.R. at 191, 209 (1954)); see also United
States v. Flores, 69 M.J. 366, 373 (C.A.A.F. 2011) (“It is well established that an
appellate court can order a rehearing based on the accumulation of errors not
reversible individually.”).
151 Banks, 36 M.J. at 171 (quoting United States v. Yerger, 1 C.M.A. 288, 290, 3
C.M.R. at 22, 24 (1952)) (internal quotation marks omitted).
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Opinion of the Court
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
34