United States v. Frost

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Nicholas L. FROST, Specialist
United States Army, Appellant
No. 18-0362
Crim. App. No. 20160171
Argued April 9, 2019—Decided July 30, 2019
Military Judges: Michael J. Hargis and Lanny J. Acosta Jr.
For Appellant: Robert Feldmeier, Esq. (argued); Captain
Steven J. Dray (on brief); Major Julie L. Borchers.
For Appellee: Captain Jonathan S. Reiner (argued); Colo-
nel Steven P. Haight, Lieutenant Colonel Eric K. Stafford,
and Major Hannah E. Kaufman (on brief); Captain Jeremy
S. Watford.
Judge OHLSON delivered the opinion of the Court, in
which Chief Judge STUCKY and Judge RYAN, joined.
Judge SPARKS filed a separate opinion concurring in
part and dissenting in part. Judge MAGGS filed a sepa-
rate dissenting opinion.
_______________
Judge OHLSON delivered the opinion of the Court. 1
A military judge sitting as a general court-martial con-
victed Appellant, contrary to his pleas, of raping his own
daughter, DF, a child under the age of twelve, in violation of
Article 120b, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 920b (2012). The adjudged and approved sentence
consisted of reduction to the grade of E-1, a dishonorable
discharge, and confinement for ten years. Upon appellate
review, the United States Army Court of Criminal Appeals
(CCA) affirmed the findings and sentence.
1 We heard oral argument in this case at the University of
Kansas School of Law, Lawrence, Kansas, as part of the Court’s
Project Outreach. This practice was developed as a public aware-
ness program to demonstrate the operation of a federal court of
appeals and the military justice system.
United States v. Frost, No. 18-0362/AR
Opinion of the Court
We granted review to determine whether the military
judge abused his discretion by admitting hearsay statements
as prior consistent statements under Military Rule of Evi-
dence (M.R.E.) 801(d)(1)(B)(i) where the defense theory pos-
ited the improper influence or motive preceded the allegedly
consistent statements. United States v. Frost, 78 M.J. 216
(C.A.A.F. 2018) (order granting review). We conclude that
the military judge did abuse his discretion when he improp-
erly admitted hearsay statements under M.R.E.
801(d)(1)(B)(i), and we further conclude that the Govern-
ment has failed to demonstrate that Appellant was not prej-
udiced. Accordingly, we reverse.
I. Background
A. Facts
In 2000, Appellant and Ms. J. N. Moore began a
relationship that lasted approximately six years. They had a
son together, but their relationship ended before their
daughter, DF, was born in January 2007. The breakup
between Appellant and Ms. Moore was contentious, and they
had disputes over custody and visitation issues involving
their two children. A Georgia court awarded Ms. Moore
custody of DF and her brother, but required Ms. Moore to
allow the children to visit Appellant consistent with an
established visitation schedule. In the summer of 2013,
when DF was six years old, she and her brother traveled to
spend time with Appellant who was then stationed at Fort
Bliss, Texas. DF and her brother returned to Ms. Moore in
Georgia on July 28, 2013.
On August 24, 2013, DF was riding in the car on the way
to her grandmother’s house with her brother, Ms. Moore,
and Ms. Moore’s boyfriend, Mr. Casey. Ms. Moore and Mr.
Casey later testified at Appellant’s court-martial that DF
spontaneously made a statement to the effect of, “Daddy
stuck his penis in my mouth.” The next day Ms. Moore re-
ported her daughter’s statement to law enforcement.
On March 12, 2014, a social worker at a child advocacy
center in Georgia conducted a forensic interview of DF.
During the forty-minute interview, DF did not make any
disclosures of abuse by Appellant. Further, DF told the
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United States v. Frost, No. 18-0362/AR
Opinion of the Court
interviewer she was not afraid of anyone at either of her
parents’ residences.
On November 18, 2014, an interviewer at the Armed
Forces Center for Child Protection conducted a forensic in-
terview of DF. Once again, DF did not make any disclosures
of abuse by Appellant.
An Article 32, UCMJ, 10 U.S.C. § 832 (2012), hearing
was convened and on April 14, 2015, DF testified telephoni-
cally. Once again, she made no disclosures about any sexual
abuse by Appellant.
In August 2015, Ms. Moore brought DF to five counseling
sessions with Dr. Landry, a psychotherapist. Dr. Landry tes-
tified at Appellant’s court-martial that her purpose in meet-
ing with DF was to make sure “she’s really focusing on going
through the process of understanding her feelings and emo-
tions and providing interventions for her to help her through
that process,” and that this was “primar[ily]” for “treatment
purposes.” Dr. Landry testified that DF experienced anxiety
about seeing Appellant and anxiety about testifying at his
trial. Dr. Landry also testified that DF disclosed that Appel-
lant “tried to put his pee-wee in my mouth.”2
On August 24, 2015, exactly two years after DF’s alleged
statement in the car, Ms. Moore posted the following on her
Facebook profile: “ ‘On this day two years ago, I made a deci-
sion that would change my life.’… ‘I struggled with it a week
before I acted.’… ‘It was the best decision, because I haven’t
struggled as much as I did for the four years leading up to
that.’ ”
On September 1, 2015, DF had a telephonic interview
with the prosecutors in Appellant’s case. During this inter-
view, DF once again stated that nothing sexual happened
during the summer of 2013 with Appellant and that she did
2 The CCA affirmed the military judge’s decision that this
hearsay statement was admissible under M.R.E. 803(4)’s excep-
tion for statements made for medical treatment. United States v.
Frost, No. ARMY 20160171, 2018 CCA LEXIS 263 at *13–16, 2018
WL 2448467, at *5–6 (A. Ct. Crim. App. May 30, 2018) (un-
published).
3
United States v. Frost, No. 18-0362/AR
Opinion of the Court
not tell her mother that anything did happen. The court-
martial proceeded nonetheless.
B. Court-Martial Proceedings
At trial, Appellant’s defense theory was that DF had
been coached by her mother to accuse Appellant of rape in
order to secure sole custody of DF. Defense counsel asserted
in her opening statement that “this case is about what a
mom will do to ensure that she does not have to share her
children.”
DF testified at the court-martial that nearly three years
earlier “my dad put his pee-pee in my mouth.” During the
cross-examination of DF, the defense sought to undermine
her credibility by eliciting testimony that focused on DF’s
repeated denials of abuse on a number of occasions.
1. The M.R.E. 803(4) Objection
During Dr. Landry’s testimony, trial defense counsel ob-
jected to Dr. Landry discussing statements made to her by
DF on the grounds that those statements constituted testi-
monial hearsay. In response, the Government argued that
the statements were admissible under M.R.E. 803(4) which
provides an exception to the rule against hearsay if the
statement at issue is made for the purpose of medical diag-
nosis or treatment. 3 In support of her position, defense
counsel noted that: it was law enforcement officers who re-
ferred Ms. Moore to Dr. Landry, indicating that the real
purpose of the sessions was to aid the prosecution effort ra-
ther than to obtain medical treatment; Dr. Landry did not
review DF’s medical records but instead spoke to Ms. Moore
about the allegations, investigation, and upcoming trial,
again indicating that the sessions with Dr. Landry were not
really for a medical purpose but instead were in furtherance
of the investigation; and the timing of the counseling, which
3 We denied review on the M.R.E. 803(4) issue. The purpose of
this factual recitation is not to reanalyze the military judge’s or
CCA’s M.R.E. 803(4) determination, but rather to better address
the Government’s claim that the defense had alleged that there
was motive to fabricate involving Dr. Landry which opened the
door for the Government to introduce a prior consistent statement
in rebuttal to that allegation.
4
United States v. Frost, No. 18-0362/AR
Opinion of the Court
occurred approximately one month before the original trial
date but more than two years after the alleged sexual abuse
incident, indicated that the purpose was not for medical
treatment.
The Government responded by stating that the defense
had raised the idea “there was some conspiracy” at work
here, and that:
[the defense’s] implication is that Dr. Landry [was]
used as part of the investigation with the [child ad-
vocacy] center to attempt to … get something out of
DF…. And defense wants to try to impute this idea
that Ms. Moore is trying to get Dr. Landry to do all
this stuff for her.
Defense counsel replied by saying: “I don’t think that
there’s any conspiracy nor was defense alluding to that,” and
then she further clarified that her M.R.E. 803(4) argument
was that law enforcement:
made a referral because there was an allegation of
alleged sexual abuse, and they wanted [DF] to talk
about it. In August, when the child is not talking
about it, that’s when mom picks up on the referral
and comes in the door to talk to Dr. Landry.…
....
… [T]he purpose was getting [DF] to talk about the
allegation, sir,
and not to obtain medical treatment for DF. Thus, defense
counsel argued that the M.R.E. 803(4) exception to the hear-
say rule should not apply in this situation.
Ultimately, the military judge ruled that DF’s statement to
Dr. Landry, i.e., that Appellant “tried to put his pee-wee in my
mouth,” was admissible under M.R.E. 803(4) because DF be-
lieved she was meeting with Dr. Landry in order to receive
treatment.
2. The M.R.E. 801(d)(1)(B) Objection
At trial, Ms. Moore testified that on August 24, 2013, DF
said that “her daddy had stuck his pee-pee in her mouth.”
Mr. Casey, Ms. Moore’s then-boyfriend, testified that he
recalled the phrase was “something along the lines of ‘Daddy
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United States v. Frost, No. 18-0362/AR
Opinion of the Court
put his pee-pee to my lips.’ ” 4 In response to defense
counsel’s hearsay objection, the Government argued that the
statement was admissible under M.R.E. 801(d)(1)(B) as a
prior consistent statement. Specifically, the Government
told the military judge that Appellant “raised the argument
that DF seeing her … therapist [Dr. Landry] has somehow
influenced her testimony here today, or was used to
influence her testimony, and as such, this statement made
before that time period would be consistent with her in-court
testimony.”
In response, defense counsel emphasized the defense’s
position with respect to when the improper influence was
alleged to have occurred.
Sir, just to be clear: The defense’s position has
been, prior to this trial and throughout the trial,
that Ms. Moore has put this idea in DF’s head
preceding the date of the statements for which she
is going to testify, and has continued to use the
process to include Dr. Landry to encourage the
statements. But the motive to fabricate is not
getting Dr. Landry to get her [sic]. The motive to
fabricate is that mom dislikes my client
exceptionally and does not want to share custody
and would go to any length to not have to do that,
4 The question before this Court asks us to consider the mili-
tary judge’s ruling on the admissibility of Ms. Moore’s recitation of
the August 24, 2013, statement as well as Mr. Casey’s recitation of
the same statement. During trial, the military judge heard argu-
ment from the parties on the applicability of M.R.E. 801(d)(1)(B)
to the statement offered by Ms. Moore. Subsequently, the Gov-
ernment attempted to elicit Mr. Casey’s recitation of the same
statement. Defense counsel objected to the statement, arguing:
“Hearsay. We’re going to renew our objection. Obviously it’s a dif-
ferent witness. We just want to make our objection noted for the
record for hearsay, understanding the court’s prior ruling, but for
this witness.” The military judge stated, “For the prior—okay. So
hang on a second. Government, what’s your response?” The Gov-
ernment responded “Yes, Your Honor. Again, this is a prior con-
sistent statement under 801(d)(1)(B).” The military judge then
overruled the defense objection. Because the parties and the mili-
tary judge appear to have understood that the initial ruling was
the basis for the subsequent ruling, and because no subsequent
arguments were offered, we need only analyze the discussion sur-
rounding Ms. Moore’s testimony.
6
United States v. Frost, No. 18-0362/AR
Opinion of the Court
to include encouraging the child to make a false
allegation of sexual abuse.
(Brackets in original.) Defense counsel further argued that
the defense was alleging that Ms. Moore began coaching DF
in the “two- to three-week time gap” between DF’s return to
Georgia and the date of the statement.
The military judge admitted the hearsay statement un-
der M.R.E. 801(d)(1)(B). He articulated two bases for doing
so: (1) DF’s August 24, 2013, statement was consistent with
DF’s testimony at trial; and (2) the statement was being of-
fered to rebut:
the express or implied charge that the declarant
fabricated or acted from some other recent improp-
er influence, and I believe that’s what the defense
is trying to do, is to imply that there was a recent
fabrication, you know, as of September—or, excuse
me, August, that that fabrication—you know, more
recent fabrication occurred, and therefore, that this
statement is prior to that and is consistent with the
statement that was made in court today.
3. Continuation of the Defense’s Theory
After DF’s August 24, 2013, statement was entered into
evidence, Appellant continued to pursue the theory that Ms.
Moore had improperly influenced DF prior to August 24,
2013. During cross-examination, defense counsel focused her
questions on the prior custody issues between Ms. Moore
and Appellant that may have created a motive for Ms. Moore
to improperly influence DF. Defense counsel also elicited the
content of the August 2015 Facebook post. In regard to the
latter point, on redirect examination Ms. Moore testified
that the Facebook message was in reference to her decision
in 2013 to break up with Mr. Casey. However, Mr. Casey
later testified that he and Ms. Moore did not break up until
two years later in the fall of 2015. In closing argument, the
defense argued that Ms. Moore had a history of dishonesty
and her testimony was inconsistent and unbelievable.
II. Applicable Law
This Court reviews a military judge’s decision to admit
evidence for an abuse of discretion. United States v. Humph-
erys, 57 M.J. 83, 90 (C.A.A.F. 2002). “A military judge abus-
7
United States v. Frost, No. 18-0362/AR
Opinion of the Court
es his discretion when his findings of fact are clearly errone-
ous, the court’s decision is influenced by an erroneous view
of the law, or the military judge’s decision on the issue at
hand is outside the range of choices reasonably arising from
the applicable facts and the law.” United States v. Kelly, 72
M.J. 237, 242 (C.A.A.F. 2013) (citation omitted) (internal
quotation marks omitted). Findings of fact are “clearly erro-
neous” when the reviewing court “is left with the definite
and firm conviction that a mistake has been committed.”
United States v. Martin, 56 M.J. 97, 106 (C.A.A.F. 2001).
Hearsay is generally not admissible in courts-martial.
M.R.E. 802. However, a prior consistent statement is “not
hearsay.” M.R.E. 801(d)(1)(B). From the plain language of
the rule, we derive three criteria for the admission of prior
consistent statements: (1) the declarant of the statement
must testify and must be subject to cross-examination about
the prior statement; (2) the statement must be consistent
with the declarant’s testimony; and (3) the statement must
be offered “to rebut an express or implied charge that the
declarant recently fabricated it or acted from a recent im-
proper influence or motive in testifying.” M.R.E.
801(d)(1)(B)(i).
In addition, this Court has recognized two additional
guiding principles as governing the admission of a prior con-
sistent statement: (1) the prior statement, admitted as sub-
stantive evidence, must precede any motive to fabricate or
improper influence that it is offered to rebut; and (2) where
multiple motives to fabricate or multiple improper influ-
ences are asserted, the statement need not precede all such
motives or inferences, but only the one it is offered to rebut.
United States v. Allison, 49 M.J. 54, 57 (C.A.A.F. 1998) (cit-
ing United States v. Faison, 49 M.J. 59 (C.A.A.F. 1998);
United States v. Taylor, 44 M.J. 475, 480 (C.A.A.F. 1996);
United States v. Morgan, 31 M.J. 43, 46 (C.M.A. 1990); Unit-
ed States v. McCaskey, 30 M.J. 188, 192 (C.M.A. 1990)).
III. Analysis
There is no dispute that: DF testified and was subject to
cross-examination; the August 24, 2013, statement was sub-
stantively consistent with DF’s testimony at trial; and the
August 24, 2013, statement occurred prior to DF’s counsel-
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United States v. Frost, No. 18-0362/AR
Opinion of the Court
ing sessions with Dr. Landry. See M.R.E. 801(d)(1)(B)(i)–(ii).
Thus, the pivotal issue in this case is whether DF’s state-
ment in the car was “made before any … of the motives to
fabricate or improper influences asserted by the defense
arose.” Allison, 49 M.J. at 57.
The military judge found that the defense had alleged
the improper influence occurred in August 2015 during Dr.
Landry’s counseling sessions with DF. An appellate court
may not find an abuse of discretion if the court’s conclusion
is that the military judge was “maybe wrong or probably
wrong.” United States v. Byrd, 60 M.J. 4, 12 (C.A.A.F. 2004)
(Crawford, C.J., concurring in the result). Instead, an appel-
late court may only conclude that findings of fact are clearly
erroneous when the reviewing court “is left with the definite
and firm conviction that a mistake [by the trial judge] has
been committed.” Martin, 56 M.J. at 106. Here, our review of
the record leaves this Court with such a conviction. In sum,
an examination of defense counsel’s opening statement,
cross-examination of Ms. Moore and Dr. Landry, and collo-
quy with the military judge all clearly establish that the mil-
itary judge’s finding is unsupported by the record.
Defense counsel gave a short opening statement advanc-
ing but one suggestion of improper motivation: that Ms.
Moore improperly influenced DF into making a false sexual
assault allegation against Appellant because Ms. Moore was
motivated by the desire to gain sole custody of DF. Defense
counsel followed up on that theory by cross-examining Ms.
Moore about the contentious nature of her breakup with Ap-
pellant and about the prior custody issues between them
that resulted in Ms. Moore being found in contempt of court.
Defense counsel also elicited testimony that there was a
three-week period between DF returning from Texas and
her statement in the car. Defense counsel further questioned
Ms. Moore about her August 24, 2015, Facebook post, where-
in Ms. Moore revealed that she had struggled with a deci-
sion that would change her life the week before August 24,
2013—the date that DF made her allegation against Appel-
lant. Read together, defense counsel’s opening statement
and cross-examination of Ms. Moore were clearly designed to
drive home to the military judge the defense theory that Ms.
Moore had a motive to improperly influence DF that arose
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Opinion of the Court
prior to DF’s statement on August 24, 2013, that Ms. Moore
struggled for a week prior to DF’s statement about whether
to exert that influence, and that Ms. Moore ultimately de-
cided to do so, resulting in the then-six-year-old DF making
a false allegation against her father.
Despite the assertion by the Government and the finding
by the military judge, we do not find support in the record
for the notion that Appellant alleged an improper influence
occurred during the August 2015 counseling sessions with
Dr. Landry. On the contrary, defense counsel’s cross-
examination of Ms. Moore only mentioned Dr. Landry a
single time. This occurred when defense counsel, after
questioning Ms. Moore about several of DF’s denials of
abuse, asked: “And then you continued to take DF to visit
Dr. Landry, didn’t you?” Likewise, during the defense’s cross
examination of Dr. Landry the only allusion to potential
improper influence was focused on Ms. Moore’s influence
over DF, and came when defense counsel asked whether
children repeat stories of abuse told by adults and whether
DF could have been afraid of Appellant “because of things
her mother told her.”
Our review of the record demonstrates that during the
M.R.E. 803(4) objection to Dr. Landry testifying about DF’s
statements during counseling, defense counsel argued only
that DF’s statement to Dr. Landry did not qualify for the
medical hearsay exception because the true purpose of the
counseling sessions was trial preparation, not treatment. To
the extent the military judge conflated the allegation of im-
proper influence on DF by Ms. Moore and the trial prepara-
tion assistance of DF by Dr. Landry, defense counsel’s clari-
fication was more than adequate to clear up any confusion:
Sir, just to be clear: the defense’s position has been,
prior to this trial and throughout the trial, that Ms.
Moore has put this idea in DF’s head preceding the
date of the statements for which she is going to tes-
tify, and has continued to use the process to include
Dr. Landry to encourage the statements. But the
motive to fabricate is not getting Dr. Landry to get
her [sic].
(Brackets in original.)
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Opinion of the Court
Reading the record in its entirety, it is clear that the de-
fense’s sole theory and line of approach during opening
statement, questioning, and closing argument at the court-
martial was that Ms. Moore, motivated by a desire to obtain
sole custody of her children, exerted an improper influence
on DF prior to DF’s August 24, 2013, remark. Statements
made after an improper influence arose do not rehabilitate a
witness’s credibility. See McCaskey, 30 M.J. at 192. There-
fore, the military judge made a clearly erroneous finding of
fact when he determined that the defense had alleged that
Dr. Landry exerted an improper influence on DF in August
of 2015. Moreover, based on that clearly erroneous finding,
the military judge’s decision to admit DF’s August 24, 2013,
statement was outside the range of choices reasonably aris-
ing from the law and the applicable facts. United States v.
Stellato, 74 M.J. 473, 480 (C.A.A.F. 2015).
This does not end our inquiry however. We now must de-
termine whether this error prejudiced Appellant. See Article
59(a), UCMJ, 10 U.S.C. § 859(a) (2012). “Importantly, it is
the Government that bears the burden of demonstrating
that the admission of erroneous evidence is harmless.” Unit-
ed States v. Flesher, 73 M.J. 303, 318 (C.A.A.F. 2014). “For
[preserved] nonconstitutional evidentiary errors, the test for
prejudice is whether the error had a substantial influence on
the findings.” United States v. Kohlbek, 78 M.J. 326, 334
(C.A.A.F. 2019) (citation omitted) (internal quotation marks
omitted). “In conducting the prejudice analysis, this Court
weighs: (1) the strength of the Government’s case, (2) the
strength of the defense case, (3) the materiality of the evi-
dence in question, and (4) the quality of the evidence in
question.” Id. (citations omitted) (internal quotation marks
omitted).
We conclude that the Government has not met its bur-
den. First, the Government’s case was weak. DF did testify
at trial that Appellant had sexually abused her, but the
credibility of this allegation was called into serious question
not merely because of Ms. Moore’s asserted improper influ-
ence on DF when DF was just six years old, but also because
of DF’s multiple denials of abuse to a series of different peo-
ple representing several different institutions over an ex-
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Opinion of the Court
tended period of time. 5 Specifically, DF’s denials were made
not only to the Article 32, UCMJ, investigating officer and to
the prosecutors themselves, but also to personnel at a child
advocacy center in Georgia and to personnel at the Armed
Forces Center for Child Protection. Moreover, the Govern-
ment presented at trial no forensic evidence, no other direct
witnesses, and no evidence of previous “grooming behavior”
by Appellant. 6
Second, the defense presented a fairly robust case on be-
half of Appellant. Defense counsel was able to elicit that Ms.
Moore had been dishonest in the past and had a clear and
5 In his separate opinion, Judge Sparks argues that the
strength of the defense’s case “was undercut by Dr. Landry’s tes-
timony that children regularly are unwilling to tell people about
trauma due to fear, shame, anxiety or depression.” However, we
note that Dr. Landry’s testimony also supported the defense’s case
on a closely related point. Specifically, during cross-examination
defense counsel elicited testimony from Dr. Landry that children
“repeat stories that adults tell them of abuse.” Moreover, to the
extent that fear inhibited DF during her forensic interviews, de-
fense counsel introduced evidence that during her November 18,
2014, forensic interview “Miss DF did not make any disclosures of
abuse against Specialist Frost. Miss DF stated that she was
scared to talk during her prior interview, but was not scared dur-
ing this interview.” (Emphasis added.)
6 In his separate opinion, Judge Sparks states that the
strength of the Government’s case was bolstered by the fact that
“DF described Appellant’s penis as ‘having a little circle around
it.’ ” He concludes that Appellant’s piercing “was something [DF]
likely would have only known [about] if she had seen it.” We note
that, DF could have learned about Appellant’s piercing from Ms.
Moore when Ms. Moore improperly influenced DF into making a
rape allegation against Appellant, as argued by defense counsel at
trial. Moreover, DF’s description of Appellant’s penis as having “a
little circle around it” is inconsistent with Ms. Moore’s own testi-
mony that Appellant had a piercing that consisted of two loops the
size of pencil erasers which extended from the underside of Appel-
lant’s penis. The nine-year-old’s incorrect description of this pierc-
ing brings into question whether she was testifying about some-
thing she had seen or something she had been told about three
years earlier.
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Opinion of the Court
compelling motive to improperly influence her six-year-old
daughter into making a false allegation against Appellant. 7
And third, the materiality and quality of the improperly
admitted evidence was likely substantial because it went to
the heart of the matter in dispute: whether Appellant raped
his daughter. Indeed, the Government made it clear that it
introduced the improperly admitted evidence in order to bol-
ster the credibility of the allegations that DF made from the
witness stand.
In light of these facts, we conclude that the Government
failed to establish that the improperly admitted evidence did
not have a substantial influence on the military judge’s
guilty findings. Therefore, the Government did not meet its
burden in establishing that Appellant was not prejudiced.
IV. Decision
The decision of the United States Army Court of Crimi-
nal Appeals is reversed as to Specification 2 of the Charge.
The findings for this charge and specification are set aside.
The sentence is also set aside. A rehearing is authorized.
7 The CCA’s determination that Mr. Casey was credible, Frost,
2018 CCA LEXIS 263, at *6–7, 2018 WL 2448467, at *3, is of little
consequence because the fact that Mr. Casey heard DF utter the
statement does not mean that the statement was not the product
of Ms. Moore’s improper influence.
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Judge SPARKS, concurring in part and dissenting in
part.
I agree with the majority that the military judge erred in
admitting the two hearsay statements as prior consistent
statements under Military Rule of Evidence 801(d)(1)(B)(i).
However, because I conclude that the military judge’s error
did not have a substantial influence on the guilty findings, I
respectfully dissent in part.
As stated by the majority, “[f]or [preserved]
nonconstitutional evidentiary errors, the test for prejudice is
whether the error had a substantial influence on the
findings.” United States v. Kohlbek, 78 M.J. 326, 334
(C.A.A.F. 2019) (citation omitted) (internal quotation marks
omitted). “In conducting the prejudice analysis, this Court
weighs: (1) the strength of the Government’s case, (2) the
strength of the defense case, (3) the materiality of the
evidence in question, and (4) the quality of the evidence in
question.” Id. (citations omitted) (internal quotation marks
omitted).
First, the Government’s case was strong. The fact that
DF disclosed the rape to Ms. Moore and Mr. Casey was not
in dispute. In other words, the fact that two other witnesses
testified that the child uttered the statement is only relevant
to the question whether the statement was uttered or not.
Instead, the paramount question was whether the rape
occurred. DF testified that Appellant “put his wee-wee in my
mouth.” Furthermore, DF described Appellant’s penis as
having “a little circle around it.” DF’s identification of
Appellant’s penis piercing was something she likely would
have only known if she had seen it. The military judge, the
trier of fact in this case, assessed the child-witness’s
credibility and found her testimony credible.
Second, the defense case, on the other hand, was not
particularly strong. The defense’s theory was to show that
Ms. Moore, motivated by custody and visitation problems
with Appellant, had coached DF to falsely accuse Appellant
of rape. Appellant’s case primarily consisted of cross-
examination and stipulations of expected testimony. This
evidence showed that over a period of years, DF omitted or
denied that Appellant had raped her. However, the defense’s
case was undercut by Dr. Landry’s testimony that children
regularly are unwilling to tell people about trauma due to
fear, shame, anxiety, or depression. Again, the military
United States v. Frost, No. 18-0362/AR
Judge SPARKS, concur in part and dissent in part
judge was best situated to assess the defense efforts to
impeach the child-witness and concluded those efforts were
insufficient.
Ultimately, I find no prejudice based largely on the third
and fourth factors. The improperly admitted hearsay
statements were not material, as this evidence was
cumulative of evidence already testified to at trial. Without
objection, DF testified that she told Ms. Moore and Mr.
Casey about what occurred with Appellant. The improperly
admitted hearsay statements added insignificant detail
beyond the unobjected-to testimony by DF. In light of the
overlap in testimony, I am persuaded that the improperly
admitted hearsay statements were not qualitatively
significant and could not have prejudiced Appellant’s case.
Accordingly, I conclude the Government has met its
burden of demonstrating that the improperly admitted
hearsay statements did not have a substantial influence on
the guilty findings in this case. Therefore, I respectfully
concur in part and dissent in part.
2
United States v. Frost, No. 18-0362/AR
Judge MAGGS, dissenting.
Military Rule of Evidence (M.R.E.) 802 makes hearsay
generally inadmissible. But M.R.E. 801(d)(1)(B) excludes
from the definition of hearsay statements that are consistent
with testimony at trial and offered to rebut charges that the
testimony was recently fabricated or the product of an im-
proper motive or influence. At the time of trial, M.R.E.
801(d)(1)(B) provided in relevant part:
A statement that meets the following conditions is
not hearsay:
(1) A Declarant-Witness’s Prior Statement. The
declarant testifies and is subject to cross-
examination about a prior statement, and the
statement:
….
(B) is consistent with the declarant’s testi-
mony and is offered to rebut an express or implied
charge that the declarant recently fabricated it or
acted from a recent improper influence or motive in
so testifying.1
In this case, DF testified at trial that Appellant put his
penis in her mouth. Trial counsel subsequently perceived
that civilian defense counsel, through her questions and ar-
gument, had expressly or impliedly charged that during
counseling sessions in August 2015, Dr. Karen Landry had
improperly influenced DF so that she would make this accu-
sation against Appellant. To rebut this charge of improper
influence by Dr. Landry, trial counsel sought to introduce
evidence of a consistent statement made by DF in the sum-
mer of 2013 before she met Dr. Landry. Civilian defense
counsel objected on grounds of hearsay. Trial counsel told
the military judge that the Government was seeking to ad-
mit the 2013 statement as non-hearsay under M.R.E.
801(d)(1)(B) on the basis that it “pre-dated the potential mo-
1 The version of M.R.E. 801 in the Supplement to Manual for
Courts-Martial, United States, Military Rules of Evidence (2012
ed.), applies to this case because the court-martial occurred in
March 2016. The President subsequently made an amendment to
M.R.E. 801(d)(1)(B) in the Manual for Courts-Martial, United
States (2016 ed.) (MCM).
United States v. Frost, No. 18-0362/AR
Judge MAGGS, dissenting
tive to fabricate involving Dr. Landry.” The military judge
admitted the 2013 statement on this basis. Civilian defense
counsel later renewed the objection but the military judge
overruled the renewed objection.
The question in this case is whether the military judge
abused his discretion in deciding that DF’s 2013 statement
was admissible because it was not hearsay under M.R.E.
801(d)(1)(B). See United States v. Humpherys, 57 M.J. 83, 90
(C.A.A.F. 2002) (a military judge’s admission of evidence is
reviewed for abuse of discretion). The Court today concludes
that the military judge abused his discretion in admitting
the 2013 statement because the Court cannot “find support
in the record for the notion that Appellant alleged an im-
proper influence occurred during the August 2015 counsel-
ing sessions with Dr. Landry.” United States v. Frost, __
M.J. __ (10–11) (C.A.A.F. 2019). I respectfully disagree with
this conclusion.
Attacks based on improper influence or motive are not
always made directly and expressly. Instead, an opposing
party sometimes makes such attacks by “implication or in-
nuendo” and sometimes relies on the “suggestive force of
questions or underlying facts to carry the message, in which
case the charge is implied.” 4 Christopher B. Mueller &
Laird C. Kirkpatrick, Federal Evidence § 8:39, at 341 (4th
ed. 2013). As an example, if a mother testifies in a case in
which her son faces criminal charges, the prosecutor might
expressly attack her testimony as being influenced by an
improper motive by asking a question such as: “ ‘You would
do anything you could to help your son, wouldn’t you?’ ” Id.
at 341–42 (citing Michael Graham, Prior Consistent State-
ments: Rule 801(d)(1)(B) of the Federal Rules of Evidence,
Critique and Proposal, 30 Hastings L.J. 575, 586, 607
(1979)). Alternatively, the prosecutor might attack her tes-
timony impliedly—but equally effectively—with the more
subtle question: “ ‘You are the mother of the defendant,
aren’t you?’ ” Id. at 342.
Because an opposing counsel’s attacks on a witness’s tes-
timony can be implied, and because only attacks that go to
recent fabrication, or improper influence or motive (as op-
posed to attacks that address other problems such as mis-
taken memory) can be rebutted with a prior consistent
2
United States v. Frost, No. 18-0362/AR
Judge MAGGS, dissenting
statement, a military judge faces a difficult burden in apply-
ing M.R.E. 801(d)(1)(B). “[W]hether any given attack indi-
cates fabrication, influence, or motive turns on the nature of
the attack, the purpose of the attacking party, surrounding
circumstances, and the interpretation put on them by the
court.” 4 Mueller & Kirkpatrick, supra p. 2, § 8:39, at 345.
Because of this burden, appellate judges must afford consid-
erable deference to a military judge’s assessment of whether
a party has made a charge of improper motive. United States
v. Lozada-Rivera, 177 F.3d 98, 104 (1st Cir. 1999) (giving
“deference to the trial court’s finding as to whether counsel
has implied during questioning that a witness has a motive
to fabricate”); United States v. Frazier, 469 F.3d 85, 89 (3d
Cir. 2006) (holding that the trial judge has discretion to de-
termine whether a conscious alteration of testimony has
been made); 4 Mueller & Kirkpatrick, supra p. 2, § 8:39, at
345 (“Not surprisingly, judges have broad interpretive dis-
cretion” in deciding what kind of an attack on testimony has
occurred.).
In my view, consistent with these deferential standards,
the military judge in this case could have concluded for sev-
eral reasons that civilian defense counsel had expressly or
impliedly charged that Dr. Landry had improperly influ-
enced DF during her counseling sessions. I review these rea-
sons with detailed quotations from the record because while
“a charge of improper motive or recent fabrication need not
be expressly made or buttressed by concrete evidence,” it is
still necessary to “point to specific questions during his ad-
versary’s examination that suggest recent fabrication or bi-
as.” Lozada-Rivera, 177 F.3d at 104.
First, civilian defense counsel asked cross-examination
questions to establish that, before DF began meeting with
Dr. Landry, DF on two significant occasions had declined to
accuse Appellant of misconduct. For instance, in cross-
examining DF, civilian defense counsel asked DF to confirm
that she had denied that any abuse had occurred during a
conversation on March 12, 2014 with a forensic interviewer
named Allison Boynes:
Q. . . . And you told her [Ms. Boynes] nothing hap-
pened at your dad’s house that summer, right?
A: I think so.
3
United States v. Frost, No. 18-0362/AR
Judge MAGGS, dissenting
Civilian defense counsel also asked DF to confirm that DF
had denied any abuse occurred during telephonic testimony
at the Article 32, UCMJ, 10 U.S.C. § 832, hearing on April
14, 2015:
Q. . . . And when you were answering those ques-
tions on the phone for that Army officer, you told
him that nothing bad happened at your dad’s
house, correct?
A. I think so.
In my view, the military judge had discretion to decide
that civilian defense counsel, through these questions, was
implicitly arguing that DF changed her story after she spoke
to Dr. Landry because Dr. Landry somehow improperly in-
fluenced her. 2 See United States v. Red Feather, 865 F.2d
169, 171 (8th Cir. 1989) (upholding admission of a prior con-
sistent statement because “[t]he defendant had implied on
cross-examination that [the complaining witness in a child
sexual abuse case] had been coached by the social services
counselors”); see also United States v. Baron, 602 F.2d 1248,
1253 (7th Cir. 1979) (“The jury might well have inferred that
[recent fabrication] was what one defense counsel was sug-
gesting from his emphasis at the beginning of his cross-
examination on the fact that [the witness] had never [previ-
ously] implicated defendant.”).
Second, civilian defense counsel also used cross-
examination to show that Dr. Landry had the knowledge
necessary to exert improper influence over DF during the
counseling sessions. Civilian defense counsel asked Dr.
Landry to confirm that she had obtained background infor-
mation regarding the allegation of abuse from sources other
than DF. In response to civilian defense counsel’s question-
2 After the military judge made his ruling under M.R.E.
801(d)(1)(B), civilian defense counsel introduced a stipulation of
expected testimony in which the parties agreed that if Appellant’s
current wife were present and testifying at trial, she would testify
that DF had not mentioned any abuse in June and July of 2013
when the abuse allegedly occurred. While this stipulation did not
influence the military judge’s M.R.E. 801(d)(1)(B) ruling, introduc-
tion of the stipulation tends to confirm that civilian defense coun-
sel’s strategy was to suggest that DF changed her story after
speaking to Dr. Landry.
4
United States v. Frost, No. 18-0362/AR
Judge MAGGS, dissenting
ing, Dr. Landry testified: “Normally, when people come in to
the sexual assault center, we pretty much have all of that
information, because they’ve already talked to, like, proba-
bly eight people before they’ve talked to me, and I can just
pull the information.” A possible implication is that Dr.
Landry used this information to influence what DF subse-
quently said about the abuse. Lest the military judge miss
the point, civilian defense counsel followed up by asking Dr.
Landry pointed questions along the following lines:
Q. Some children make up stories of abuse?
A. Yes
Q: Some children repeat stories that adults tell
them of abuse?
A. Yes
Civilian defense counsel did not specifically name any adults
who might have told DF stories about abuse. But in my
view, the military judge had discretion to conclude that civil-
ian defense counsel was insinuating that Dr. Landry was at
least one adult who had improperly influenced DF.
Third, when the military judge was considering whether
DF’s statements to Dr. Landry were admissible under the
medical treatment exception to the hearsay rule in M.R.E.
803(4), civilian defense counsel made arguments suggesting
that Dr. Landry had asserted an improper influence over
DF. Civilian defense counsel asserted that Dr. Landry was
“preparing the child’s statements for the purpose of trial,”
and “in furtherance of the investigation.” Civilian defense
counsel further questioned the purpose of Dr. Landry’s
counseling sessions by asking rhetorically, “when there’s no
outcry during the process, then there would seem to be no
reason why we would need to get [DF] to talk about the al-
leged abuse.” Although civilian defense counsel made these
arguments in the context of a dispute about M.R.E. 803(4),
and may not have intended the arguments to influence the
military judge’s decision about whether DF’s 2013 statement
was admissible under M.R.E. 801(d)(1)(B), the military
judge still had discretion to conclude that the arguments in-
sinuated that Dr. Landry had improperly influenced DF. See
Baron, 602 F.2d at 1253 (“The fact that defense counsel may
not have intended to imply that [defendant’s] story was fab-
5
United States v. Frost, No. 18-0362/AR
Judge MAGGS, dissenting
ricated [recently] is irrelevant if that inference fairly arises
from the line of questioning he pursued.”).
Appellant’s apparently strongest argument for
concluding the opposite—that civilian defense counsel did
not insinuate that Dr. Landry had improperly influenced
DF—is civilian defense counsel’s statement to the military
judge: “Sir, just to be clear: The defense’s position has been,
prior to this trial and throughout the trial, that Ms. Moore
has put this idea in DF’s head preceding the date of the
statements for which she is going to testify, and has
continued to use the process to include Dr. Landry to
encourage the statements.” In this statement, civilian
defense counsel certainly accuses DF’s mother of exerting
improper influence over DF. 3 But as the Government points
out, the last clause of the statement also implicates Dr.
Landry in improper influence.
For these reasons, the military judge could decide that
the elements of M.R.E. 801(d)(1)(B) were met, and that the
Government could introduce a prior consistent statement to
rebut civilian defense counsel’s implied charge that Dr.
Landry had improperly influenced DF. This conclusion does
not mean that Dr. Landry intended to influence DF
improperly or actually did influence her improperly. It
simply means that the military judge did not abuse his
discretion in admitting DF’s 2013 statement. Because
3 In other statements, civilian defense counsel charged that
DF’s mother began her improper influence of DF before DF made
the 2013 statement. This charge of improper influence by DF’s
mother did not open the door for the Government to introduce the
2013 statement because a consistent statement must predate the
improper influence to be admissible under M.R.E. 801(d)(1)(B).
See Tome v. United States, 513 U.S. 150, 167 (1995). But the
charge against DF’s mother also did not prevent the Government
from using the 2013 statement to rebut the implied charge that
Dr. Landry had improperly influenced DF. As this Court has
recognized, “[w]here multiple motives to fabricate or multiple
improper influences are asserted, the statement need not precede
all such motives or influences, but only the one it is offered to
rebut.” United States v. Allison, 49 M.J. 54, 57 (C.A.A.F. 1998)
(citations omitted).
6
United States v. Frost, No. 18-0362/AR
Judge MAGGS, dissenting
admission of the statement was not error under the
deferential abuse of discretion standard, I have no need to
consider the issue of prejudice as discussed by the Court and
by Judge Sparks in his separate opinion concurring in part
and dissenting in part.
Accordingly, I respectfully dissent. I would affirm the
judgment of the United States Army Court of Criminal
Appeals.
7