United States v. Finch

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
David M. FINCH, Specialist
United States Army, Appellant
No. 19-0298
Crim. App. No. 20170501
Argued December 4, 2019—Decided March 3, 2020
Military Judges: Jeffery R. Nance and Christopher E. Martin
For Appellant: William E. Cassara, Esq. (argued); Captain
Steven J. Dray (on brief).
For Appellee: Captain Brian Jones (argued); Colonel Steven
Haight, Lieutenant Colonel Wayne H. Williams, and Major
Craig Schapira (on brief).
Judge OHLSON delivered the opinion of the Court, in
which Chief Judge STUCKY, and Judges RYAN,
SPARKS, and MAGGS, joined.
_______________
Judge OHLSON delivered the opinion of the Court.
A military judge sitting as a general court-martial
convicted Appellant, contrary to his pleas, of one specification
of violating a lawful general regulation for providing alcohol
to a minor, one specification of sexual abuse of a child, and
three specifications of rape of a child who had not attained the
age of twelve years, in violation of Articles 92 and 120b,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892,
920b (2012). The convening authority approved the adjudged
sentence of a dishonorable discharge, confinement for six
years, and a reduction to the grade of E-1. The United States
Army Court of Criminal Appeals set aside the finding of guilty
for the Article 92, UCMJ, offense, but affirmed the remaining
findings of guilty for the Article 120b, UCMJ, offenses. United
States v. Finch, 78 M.J. 781, 792 (A. Ct. Crim. App. 2019).
We granted review on the following issue:
United States v. Finch, No. 19-0298/AR
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Whether the military judge erred in admitting over
defense objection the video-recorded interview of AH
by CID because it was not a prior consistent
statement under Mil. R. Evid. 801(d)(1)(B).
United States v. Finch, 79 M.J. 220 (C.A.A.F. 2019) (order
granting review).
Pursuant to the provisions of Military Rule of Evidence
(M.R.E.) 801(d)(1)(B), we hold that only those portions of a
witness’s prior statement that are consistent with the
witness’s courtroom testimony may be deemed admissible at
trial. We further hold that the prior consistent statement
must serve one of the express purposes cited by M.R.E.
801(d)(1)(B): it must either rebut an express or implied charge
against the declarant of recent fabrication or improper
influence or motive, or it must rehabilitate the declarant’s
credibility “when attacked on another ground.” Id.In the instant case, we conclude that the military judge
erred in admitting the video-recorded interview of AH in its
entirety. However, this error did not materially prejudice
Appellant’s substantial rights. Accordingly, we affirm the
judgment of the lower court.
I. Facts
A. Background
Appellant is accused of sexually assaulting his eleven-
year-old stepdaughter, AH, on two different occasions during
the summer and fall of 2015 while Appellant was stationed at
Fort Bragg, North Carolina. Prior to the sexual assaults, the
two had a close relationship and often spent time together, to
include various outdoor activities and frequent camping trips
to nearby Mott Lake. However, AH later reported that
Appellant had sexually assaulted and raped her during two
of these camping trips.
On September 25, 2015, AH told her mother that
Appellant had inappropriately touched her. AH’s mother
asked Appellant about the allegations, but she did not contact
law enforcement. Approximately two weeks after AH
disclosed the sexual assaults, AH’s mother gave birth to
Appellant’s child. On March 11, 2016, AH ran away from
home to her friend’s house. The friend’s mother asked AH why
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she ran away, and AH disclosed the sexual assaults to her.
The friend’s mother promptly notified the police. On March
12, 2016, a special agent with the United States Army
Criminal Investigation Command (CID) conducted an
interview with AH about the sexual assaults and videotaped
the interview. This case went to trial in September of 2017.
B. Court-Martial Proceedings
The Government opened its case-in-chief with testimony
from AH about the sexual assaults. After AH testified and
was impeached during cross-examination, assistant trial
counsel moved to admit Prosecution Exhibit 3, the videotaped
interview of AH conducted by CID. A detailed comparison of
the content of AH’s testimony on the stand to the content of
AH’s account of events during the CID interview is essential
to resolve the issue currently before this Court because in
order for the videotaped interview to be admissible as a prior
consistent statement under M.R.E. 801(d)(1)(B), it must in
fact be “consistent” with AH’s in-court testimony.
1. AH’s In-Court Testimony
In regard to the first instance of sexual assault, AH
testified that while lying in her sleeping bag in a tent at Mott
Lake with Appellant next to her, she remembered waking up,
still feeling half asleep, and realizing that Appellant was
rubbing her vagina over her clothing. While at first AH
thought it was a dream, she testified that she later realized it
actually happened.
AH next testified about the second instance of sexual
assault while she was in her sleeping bag in a tent at Mott
Lake. In particular, AH recounted the following: Appellant
draped his arm around her stomach, moved his hands to her
vagina and rubbed it on top of her clothing, put his hands
inside her underwear, inserted his finger into her vagina,
subsequently removed his finger from her vagina and
inserted it into her mouth, pulled her pants down, and
inserted his penis into her vagina. AH stated that she was not
sore from Appellant’s penetration the next morning, and that
it did not hurt to walk.
AH also testified that she made several disclosures to
different peers and adults about the sexual assaults.
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Specifically, she described first telling her friend AC, next
telling her mother, telling some other friends to include BM,
and then telling the school guidance counselor. Finally, AH
explained that she ran away from home because she had
“got[ten] sick” of trying to “block everything out.”
2. AH’s Account in Videotaped Interview
A CID special agent interviewed AH about the sexual
assault allegations she made against Appellant. AH’s in-court
testimony in some ways closely tracked her account of events
during the CID interview, but in other ways diverged from it.
AH began by describing the first instance of sexual
assault. AH explained that she had just woken up and was
still half asleep when she noticed Appellant rubbing her
vagina over her clothing. In the moment, AH thought she was
dreaming, but she later came to realize that the touching had
actually happened. This description mirrors AH’s in-court
testimony.
Next, AH described the second instance of sexual assault.
AH detailed the following: she was lying on her side facing
the tent wall, Appellant was behind her and put his arm
around her body, Appellant moved his hand down and started
“petting” her vagina, Appellant pulled her pants down,
Appellant inserted his finger into her vagina, and Appellant
inserted his penis into her vagina. This description is also
similar to AH’s in-court testimony. However, during trial, AH
described Appellant removing his fingers from her vagina and
then placing them inside her mouth, and she did not include
that detail during the CID interview.
Additionally, AH stated in the CID interview that she felt
pain during and after the sexual assault, and gave details
regarding the position of the sleeping bag in the tent and the
fact that the zipper on the sleeping bag was broken. At trial,
AH testified that she did not feel pain, and she did not
mention the sleeping bag details at all.
Later in the interview, AH told CID that her mother was
the first person she told about the sexual assaults. AH
described next disclosing the information to her friend BM,
and later to a school counselor. At trial, AH named all of these
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people when discussing her disclosures, but she recalled
telling them in a different order. Additionally, in the CID
interview, AH explained that she had run away from home
because her mother did nothing about the sexual assaults
even though she was aware that they had happened.
Finally, AH told CID that after she disclosed the sexual
assaults to her mother, her mother started requiring
Appellant to stay away from their house when AH invited
girlfriends over to spend the night. AH did not make any
reference to these limitations during her testimony at trial.
3. Defense Theory of the Case
Throughout the court-martial, trial defense counsel
broadly attacked AH’s credibility as a victim and as a witness.
The defense theory of the case was that the sexual assaults
never occurred, AH made up the original story and then
continued to fabricate new versions of the story to support her
lie, and she did all of this to get attention from her friends and
from her pregnant mother. As noted in greater detail below,
trial defense counsel attacked AH’s credibility by (1)
impeaching AH during cross-examination, (2) introducing
witnesses to testify that AH disclosed something different to
them about the sexual assaults than what she testified to at
trial, and (3) introducing character witnesses to testify to
AH’s bad character for truthfulness.
First, during the cross-examination of AH, trial defense
counsel impeached AH based on inconsistencies between her
prior statements and her trial testimony. Specifically, trial
defense counsel pointed out that AH testified at trial about
Appellant placing his fingers inside her mouth, but that AH
failed to mention that in the CID interview. Additionally, trial
defense counsel attempted to establish that AH had a motive
to fabricate the sexual assaults based on her dislike of her
mother and desire to live with someone else. The following
exchange occurred:
[Trial Defense Counsel (TDC)]: Did you tell CID that your
mom only cares about herself?
[AH]: Yeah.
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[TDC]: And she only wants to live in a perfect, little world
with her perfect, little child?
[AH]: Yes, ma’am.
[TDC]: That’s a yes? And you don’t want to live with her
right now?
[Affirmative response by the witness.]
[TDC]: At the time you were talking with CID you didn’t
want to live with your parents?
[AH]: I still don’t really want to now.
(Sixth set of brackets in original.)
Second, trial defense counsel continued to attack AH’s
credibility by questioning other witnesses about the version
of the sexual assaults that AH shared with them, and
highlighting aspects of those stories—omissions,
inconsistencies, and timeline differences—that diverged from
the version of the assaults AH testified about at trial. Third,
trial defense counsel introduced AH’s mother and
grandfather as character witnesses who testified,
respectively, that AH is “pretty dishonest” and is “a
fabricating liar.”
4. Admission of Videotaped Interview
During the Government’s case-in-chief, assistant trial
counsel moved to admit the videotaped CID interview of AH.
Trial defense counsel objected to the admission of the
videotape on the basis of relevance, hearsay, and
cumulativeness. In response, assistant trial counsel argued:
Your Honor, the defense throughout their cross-
examination of the victim, [AH], has both attacked
her credibility, the timeline, they’ve talked to other
witnesses about the timeline itself. So given the fact
that her credibility has been attacked, her memory
has been attacked, potential motives to fabricate
have been raised, the [G]overnment’s position at this
point is that the DVD interview that [CID]
conducted with [AH], the victim in this case,
qualifies as a prior consistent statement and would
qualify for ground as entered—as an exhibit, Your
Honor.
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Upon learning that the prosecution’s specific basis for
admission of the videotape was as a prior consistent
statement, trial defense counsel responded by arguing that it
was mere repetition and failed to meet the admissibility
requirements of a prior consistent statement.
The military judge conceded on the record, “I haven’t seen
the video obviously.” However, he nevertheless overruled the
defense objections, finding the videotape admissible under
M.R.E. 801. In so doing, he explained why the video—a video
he had not seen—was not cumulative, but he made no other
findings of fact or law. He made no specific comments about
why he concluded the videotape was admissible as non-
hearsay under M.R.E. 801, nor did he specify under which
subsection of M.R.E. 801 he believed the videotape to be
admissible. Further, the military judge never came back on
the record after watching the videotape to explain which
aspects of it he would be considering for which evidentiary
purposes. Later in the trial, the military judge simply noted,
“And of course I’ll give all evidence the weight it—that it
deserves.”
II. Standard of Review
“This Court reviews a military judge’s decision to admit
evidence for an abuse of discretion.” United States v. Frost, 79
M.J. 104, 109 (C.A.A.F. 2019) (internal quotation marks
omitted) (quoting United States v. Humphreys, 57 M.J. 83, 90
(C.A.A.F. 2002)).
A military judge abuses his discretion when his
findings of fact are clearly erroneous, 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.
Id. (internal quotation marks omitted) (quoting United
States v. Kelly, 72 M.J. 237, 242 (C.A.A.F. 2013)).
III. Applicable Law
In 2016, the President amended M.R.E. 801(d). Exec.
Order No. 13,730, 3 C.F.R. § 492 (2016). As amended, the
relevant part of the rule states:
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(d) Statements that Are Not Hearsay. A statement
that meets the following conditions is not hearsay:
(1) A Declarant-Witness’ 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 testimony and
is offered:
(i) 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;
or
(ii) to rehabilitate the declarant’s credibility as a
witness when attacked on another ground; . . . .
M.R.E. 801(d) (2016).
The proponent of evidence has the burden of
demonstrating that the evidence is admissible. United States
v. Palmer, 55 M.J. 205, 208 (C.A.A.F. 2001) (citing United
States v. Shover, 45 M.J. 119, 122 (C.A.A.F. 1996)). Because
the Government argued at trial that the videotaped interview
was admissible under both subparts of M.R.E. 801(d)(1)(B),
and because the military judge failed to state under which
subpart he admitted the videotape, this opinion will address
the amended rule in its entirety.
A. Threshold Admissibility Requirements for
M.R.E. 801(d)(1)(B)
Hearsay is an out-of-court statement offered into evidence
to prove the truth of the matter asserted. M.R.E. 801(c).
Hearsay generally is not admissible in courts-martial. M.R.E.
802. However, a prior consistent statement made by a
declarant-witness is not hearsay if certain criteria are met.
M.R.E. 801(d)(1). Specifically, the plain language of the rule
provides these three threshold admissibility requirements:
(1) the declarant of the out-of-court statement must testify,
(2) the declarant must be subject to cross-examination about
the prior statement, and (3) the statement must be consistent
with the declarant’s testimony. M.R.E. 801(d)(1)(B); see also
Frost, 79 M.J. at 109–10. In the instant case, both parties
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agree that the first two requirements were met. The question
remains, however, whether AH’s videotaped statement to
CID was sufficiently “consistent” with the declarant’s in-court
testimony.
The language of M.R.E. 801(d)(1)(B) is identical to the
corresponding federal rule, and as such, the interpretation of
the term “consistent” by other federal courts of appeals is
instructive. Manual for Courts-Martial, United States,
Analysis of the Military Rules of Evidence app. 22 at A22-61
(2016 ed.) [hereinafter Drafters’ Analysis]. The United States
Court of Appeals for the Third Circuit has held that “the rule
allows the use of earlier statements that are generally
consistent with the testimony at trial.” United States v.
Muhammad, 512 F. App’x 154, 166 (3d Cir. 2013) (internal
quotation marks omitted) (citation omitted). Similarly, the
United States Court of Appeals for the First Circuit has
explained, “a prior consistent statement need not be identical
in every detail to the declarant’s . . . testimony at trial.”
United States v. Vest, 842 F.2d 1319, 1329 (1st Cir. 1988).
Rather, the prior statement need only be “for the most part
consistent” and in particular, be “consistent with respect to .
. . fact[s] of central importance to the trial.” Id.B. M.R.E. 801(d)(1)(B)(i)
For a prior statement to be admissible substantively as
non-hearsay under M.R.E. 801(d)(1)(B)(i), it first must meet
each of the threshold admissibility requirements outlined
above, and it also must be offered “to rebut an express or
implied charge that the declarant recently fabricated [the in-
court testimony] or acted from a recent improper influence or
motive in so testifying.” M.R.E. 801(d)(1)(B)(i).
The 2016 amendment to M.R.E. 801(d)(1)(B) creates no
new law with respect to the admissibility of prior consistent
statements to rebut a charge of recent fabrication or improper
influence or motive. See Drafters’ Analysis at A22-61. What
was previously admissible under M.R.E. 801(d)(1)(B) (2012)
is now admissible under M.R.E. 801(d)(1)(B)(i) (2016). As
such, this Court’s long-standing line of precedents
interpreting the old version of the rule, as recently discussed
in Frost, 79 M.J. at 110, continue to apply with full force to
the new version of M.R.E. 801(d)(1)(B)(i).
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C. M.R.E. 801(d)(1)(B)(ii)
The 2016 amendment to M.R.E. 801(d)(1)(B) added a
second type of prior consistent statement that is now
substantively admissible as non-hearsay. A determination of
the proper parameters of this new provision, M.R.E.
801(d)(1)(B)(ii), presents an issue of first impression before
this Court. However, an examination of the plain text of the
rule, our own case law regarding common law admissibility,
the Drafters’ Analysis regarding the rule change, and
precedent from other federal circuit courts of appeals
interpreting the new rule allow us to discern several
requirements for admissibility.
The plain text of M.R.E. 801(d)(1)(B)(ii) indicates that a
prior consistent statement is admissible when it serves “to
rehabilitate the declarant’s credibility as a witness when
attacked on another ground.” The rule’s mention of “another
ground” refers to one other than the grounds listed in M.R.E.
801(d)(1)(B)(i): recent fabrication or an improper influence or
motive in testifying. The rule itself does not specify what
types of attacks a prior consistent statement under M.R.E.
801(d)(1)(B)(ii) is admissible to rebut, but the Drafters’
Analysis lists “charges of inconsistency or faulty memory” as
two examples. Drafters’ Analysis at A22-61.
Preceding the 2016 change to M.R.E. 801(d)(1)(B) and the
2014 change to the sister rule in the Federal Rules of
Evidence, prior consistent statements had long been
admissible at common law for the limited purpose of
rehabilitating a witness’s credibility. See, e.g., United States
v. Coleman, 72 M.J. 184, 188 (C.A.A.F. 2013) (“Even if the
military judge would have refused to admit the prior
consistent statement for the truth of the matter asserted, it
still would have been admissible simply to corroborate, or
rehabilitate, the in-court testimony of a witness.” (internal
quotation marks omitted) (citation omitted)); United States v.
Simonelli, 237 F.3d 19 (1st Cir. 2001); United States v. Ellis,
121 F.3d 908, 919 (4th Cir. 1997). The effect of the rule change
is to admit prior consistent statements for their value in
rehabilitating a witness’s credibility as has always been the
practice, and now also as substantive evidence for the truth
of the matter asserted. Drafters’ Analysis at A22-61.
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The Drafters’ Analysis explains:
The amendment does not change the traditional
and well-accepted limits on bringing prior consistent
statements before the factfinder for credibility
purposes. It does not allow impermissible bolstering
of a witness. As before, prior consistent statements
under the amendment may be brought before the
factfinder only if they properly rehabilitate a witness
whose credibility has been attacked. As before, to be
admissible for rehabilitation, a prior consistent
statement must satisfy the strictures of Rule 403. As
before, the trial court has ample discretion to
exclude prior consistent statements that are
cumulative accounts of an event. The amendment
does not make any consistent statement admissible
that was not admissible previously—the only
difference is that prior consistent statements
otherwise admissible for rehabilitation are now
admissible substantively as well.
Id. (emphasis added). Thus, the permissible uses of
admitted evidence have changed, but the requirements to
admit that evidence have not. It is not the case that under
M.R.E. 801(d)(1)(B)(ii), all prior consistent statements are
now automatically admissible following impeachment on any
ground. Rather, the military judge must make a
determination that each prior consistent statement is
relevant to rehabilitate the witness on one of the grounds
cited in M.R.E. 801(d)(1).
The federal circuit courts that have applied Fed. R. Evid.
801(d)(1)(b)(ii) have done so by ascertaining the type of
impeachment that has been attempted, and then evaluating
whether the prior consistent statements offered for admission
would actually rehabilitate the declarant’s credibility as a
witness. For example, the United States Court of Appeals for
the Tenth Circuit recently held that because the opposing
party “did not attempt to ‘attack[] [the witness’s credibility]
on another ground’—that is, he did not extract inconsistent
statements or accuse the victims of misremembering the
alleged abuses—. . . admitting the [prior consistent]
statements would not rehabilitate the declarant’s credibility.”
United States v. Magnan, 756 F. App’x 807, 818 (10th Cir.
2018) (alterations in original). Similarly, the United States
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Court of Appeals for the Sixth Circuit has held that where the
prior consistent statements are offered in response to an
“attack[] on another ground,” and the prior consistent
statements would function to rehabilitate the witness, the
statements are admissible under Fed. R. Evid.
801(d)(1)(B)(ii). United States v. Cox, 871 F.3d 479, 487 (6th
Cir. 2017) (internal quotation marks omitted) (upholding the
district court’s admission of a child’s prior consistent
statement where the opposing party had attacked the child
on the basis of a faulty memory); United States v. J.A.S., Jr.,
862 F.3d 543, 545 (6th Cir. 2017) (finding a prior consistent
statement to be admissible where defense counsel sought to
impeach the victim by prior inconsistent statement).
Thus, in sum, for a prior consistent statement to be
admissible under M.R.E. 801(d)(1)(B)(ii), it must satisfy the
following: (1) the declarant of the out-of-court statement must
testify, (2) the declarant must be subject to cross-examination
about the prior statement, (3) the statement must be
consistent with the declarant’s testimony, (4) the declarant’s
credibility as a witness must have been “attacked on another
ground” other than the ones listed in M.R.E. 801(d)(1)(B)(i),
and (5) the prior consistent statement must actually be
relevant to rehabilitate the witness’s credibility on the basis
on which he or she was attacked. The proponent of the
evidence bears the burden of articulating the relevancy link
between the prior consistent statement and how it will
rehabilitate the witness with respect to the particular type of
impeachment that has occurred. See Palmer, 55 M.J. at 208.
IV. Analysis
A. Erroneous Admission of Videotaped Interview
As explained in greater detail below, in the instant case
the military judge abused his discretion in admitting the
entire videotaped interview of AH as a prior consistent
statement under M.R.E. 801(d)(1)(B). This conclusion is
predicated on the fact that (1) he failed to put any findings of
fact or conclusions of law on the record, thereby forfeiting the
deference his ruling typically would have been given, (2) he
failed to review the video before admitting it, and (3) he
admitted the entire video interview rather than limiting the
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evidence to those portions of the interview that actually
contained prior consistent statements.
1. Military Judge’s Mishandling of the Issue
The military judge mishandled the issues surrounding the
admissibility of the videotaped interview, and as such, his
decision merits little deference. First, the military judge did
not put any findings of fact or particularized conclusions of
law on the record with respect to the hearsay objection.1 Trial
defense counsel objected to the videotaped interview on three
grounds: relevance, hearsay, and cumulativeness. Aside from
dismissing the cumulativeness objection, the military judge
did not include in the record any analysis of why he concluded
the videotape was admissible as non-hearsay under M.R.E.
801, nor did he specify under which subsection of M.R.E. 801
he believed the videotape to be admissible. He simply
stated—without more—“I find it is admissible under M.R.E.
801.” This Court has emphasized the importance and effect of
a military judge making a clear record. United States v.
Flesher, 73 M.J. 303, 311 (C.A.A.F. 2014). Specifically, “where
the military judge places on the record his analysis and
application of the law to the facts, deference is clearly
warranted.” Id. at 312. On the contrary, “[i]f the military
judge fails to place his findings and analysis on the record,
less deference will be accorded.” Id. This Court has favorably
quoted the United States Army Court of Criminal Appeals for
the following proposition:
1 We are not suggesting, of course, that military judges must
provide reasons on the record for every ruling on the admissibility
of evidence. We are mindful that during a court-martial, counsel
may object during the examination of a witness, and the military
judge may properly rule on these objections simply by stating “sus-
tained” or “overruled.” We do not seek to change this practice. How-
ever, where, as here, an evidentiary issue is complex and/or merits
a written filing by a party, we deem it appropriate for a military
judge to place on the record his or her reasoning behind the resolu-
tion of that issue. As we have noted, “it is difficult to defer to a de-
cision when the record does not reflect what the basis of the decision
was.” United States v. Acton, 38 M.J. 330, 334 (C.M.A. 1993). It is
all the more difficult when, as here, the record demonstrates that
the military judge did not even review the evidence before ruling on
its admissibility.
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When the standard of review is abuse of discretion,
and we do not have the benefit of the military judge’s
analysis of the facts before him, we cannot grant the
great deference we generally accord to a trial judge’s
factual findings because we have no factual findings
to review. Nor do we have the benefit of the military
judge’s legal reasoning in determining whether he
abused his discretion . . . .
Id. (internal quotation marks omitted) (quoting United
States v. Benton, 54 M.J. 717, 725 (A. Ct. Crim. App. 2001)).
On this basis alone, the military judge’s decision to admit the
videotaped interview warrants little deference.
Second, the military judge admitted this evidence without
viewing it beforehand. Although we recognize this was a
military judge-alone trial and the videotape was quite
lengthy, the proper course of action was for the military judge
to review the proffered evidence before making an
admissibility determination. The military judge’s failure to do
so was compounded by the fact that he never came back on
the record after he belatedly did view the admitted video to
clarify which parts he was admitting, and for which purposes
he would consider that evidence.2 Instead, he made the
perfunctory statement, “I’ll give all evidence the weight it—
that it deserves.” In light of these circumstances, we decline
to defer to the military judge’s admissibility determination.
2. Admission of Entire Videotaped Interview
When a party moves to introduce a prior consistent
statement under M.R.E. 801(d)(1)(B), the statement must be
“generally consistent” with the declarant’s testimony at trial
to be admissible. Muhammad, 512 F. App’x at 166 (internal
quotation marks omitted) (citation omitted). To the extent a
prior statement contains substantive information
inconsistent with the declarant’s in-court testimony, those
material inconsistent aspects of the statement are hearsay
and are not admissible under M.R.E. 801(d)(1)(B). Thus, the
2 Assistant trial counsel requested in the interest of time that
the military judge publish and view the videotape during the mili-
tary judge’s deliberations, rather than publishing the video in open
court at the time it was admitted. Trial defense counsel had no ob-
jection to this, and the military judge agreed to do so.
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Opinion of the Court
party moving to introduce a prior statement has a duty to
identify those portions of the statement that are consistent
with the witness’s testimony, and then to demonstrate the
relevancy link between the prior consistent statement and
how it will rehabilitate the witness’s credibility. See 1
Weinstein’s Federal Evidence § 103.22 (2019) (“In addition to
making a sufficient offer of proof, the proponent of evidence
must convince the trial court that the evidence is actually
admissible.”). This mandate does not require counsel to
remove every single inconsistency in a statement, since “a
prior consistent statement need not be identical in every
detail to the declarant’s . . . testimony at trial.” Vest, 842 F.2d
at 1329.3 Rather, the moving party must omit the inconsistent
parts of the statement that pertain to “fact[s] of central
importance to the trial.” Id.In the instant case, many portions of the videotaped
interview were “generally consistent” with AH’s in-court
testimony. Muhammad, 512 F. App’x at 166 (internal
quotation marks omitted) (citation omitted). Most of the
discrepancies that did occur—such as the order in which AH
told people about the sexual assaults; the operability of the
zipper on the sleeping bag); and the position of AH’s sleeping
bag in the tent—were relatively inconsequential. As such,
these particular incongruities between AH’s in-court
testimony and her videotaped interview did not render the
videotaped interview so inconsistent as to fail the third prong
of the threshold admissibility requirements of M.R.E.
801(d)(1)(B). The same cannot be said, however, of every
portion of AH’s CID interview.
We take particular note of a certain statement by AH on
the videotape that, in the words of the defense on appeal,
“tended to paint Appellant in an exceptionally bad light and
lend credibility to the [sexual assault] allegation.” Brief for
Appellant at 25, United States v. Finch, No. 19-0298 (C.A.A.F.
3 We also note that under the rule of completeness outlined in
M.R.E. 106, a party may seek to admit additional portions of a prior
statement on grounds of fairness. See United States v. Rodriguez,
56 M.J. 336, 339 (C.A.A.F. 2002) (explaining that the rule of com-
pleteness serves to prevent a court from being misled by statements
taken out of context).
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Opinion of the Court
Sept. 9, 2019). Specifically, AH explained to CID that after
she told her mother that Appellant had sexually assaulted
her, AH’s mother began to require Appellant to stay away
from their home when AH invited her female friends to spend
the night for a sleepover. This statement was not “consistent”
with anything AH testified to at the court-martial, it tended
to bolster AH’s credibility, and it pertained to an issue “of
central importance to the trial”: whether AH’s account of the
sexual assaults was truthful. Vest, 842 F.2d at 1329. Thus the
prior statement was flatly inadmissible under M.R.E.
801(d)(1)(B). Therefore, the question that remains is whether
the erroneous admission of this statement was prejudicial to
Appellant.
B. Prejudice
When this Court finds that a military judge erred in
allowing evidence to be admitted, the government bears the
burden of demonstrating that the admission of that erroneous
evidence was harmless. Frost, 79 M.J. at 111 (citing Flesher,
73 M.J. at 318). For preserved nonconstitutional evidentiary
errors, the test for prejudice is “whether the error had a
substantial influence on the findings.” Id. (internal quotation
marks omitted) (quoting United States v. Kohlbek, 78 M.J.
326, 334 (C.A.A.F. 2019)). As reflected below, in conducting
its 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. (internal quotation
marks omitted) (quoting Kohlbek, 78 M.J. at 334).
We first note that the Government’s case was not
especially strong. The Government was not able to produce
any forensic evidence, physical evidence, or witnesses who
had first-hand information about the sexual assaults
independent of the disclosures which AH made to them. See
id. at 111–12. Although uncorroborated testimony of a single
victim may certainly be sufficient to prove an offense beyond
a reasonable doubt, in the instant case AH’s courtroom
testimony was undermined by seemingly impartial—or even
friendly—witnesses. For example, AH testified that she
disclosed the sexual assaults to a school counselor. However,
the school counselor testified that this never happened.
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Opinion of the Court
Further, AH’s friends testified at trial about versions of the
sexual assaults that AH had told them, and these versions
differed significantly from what AH told the court-martial.
For example, two witnesses testified that AH told them that
at least one of the sexual assaults occurred in her bedroom at
home—not in a tent at Mott Lake.
Second, the defense made significant inroads in advancing
their theory of the case that AH fabricated the sexual assault
story. Not only was defense counsel able to elicit
inconsistencies in AH’s testimony through cross-examination
and numerous extrinsic witnesses, she also was able to call
AH’s credibility into question by introducing testimony about
AH’s bad character for truthfulness. Moreover, defense
counsel put forward plausible theories during closing
argument regarding potential motives for AH to lie about the
sexual assaults, such as AH’s desire for attention from her
friends and mother, as well as AH’s desire to have an excuse
to run away to her boyfriend’s house and live separately from
her family.
Third, the materiality and quality of the improperly
admitted evidence initially raise significant concerns. As
noted above, AH stated on the videotape that after she told
her mother that Appellant had sexually assaulted her, AH’s
mother began to require Appellant to stay away from the
house when AH invited her female friends for a sleepover. The
military judge, as the finder of fact in this case, reasonably
could have drawn an inference from this statement that AH’s
mother found AH’s allegation of sexual abuse by Appellant to
be credible. This conclusion not only could have bolstered
AH’s credibility as the victim-witness, but it also could have
undermined the sworn testimony of AH’s mother at the court-
martial that, in her personal assessment, AH had not “been
truthful at all throughout her life” and was “always . . . pretty
dishonest with me.” As a consequence, this portion of AH’s
videotaped statement not only was inconsistent with her
testimony at the court-martial, but it also pertained to “fact[s]
of central importance to the trial.” Vest, 842 F.2d at 1329.
In light of the relative weight of these factors, the
improper admission of this portion of AH’s videotaped
statement presented the Government with a significant
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Opinion of the Court
burden in demonstrating that the military judge’s error did
not have a substantial influence on the findings in this case.
However, for the reasons cited below, we conclude that the
Government has met its burden.
First, AH’s statement about the sleepovers constituted a
mere passing reference in a very lengthy video. Second, the
defense points to no instances in the course of the trial where
the Government sought to exploit this portion of AH’s
videotaped statement, and we can find no such instance in the
joint appendix submitted to this Court by the parties.
Third, AH’s definitive statement at one point in the
videotaped interview that Appellant was not permitted to
stay in the family home whenever she had a sleepover was
shown to be, at best, imprecise. Specifically, the following
exchange occurred between the CID agent and AH:
[CID AGENT]: I want to make sure I understood you
right. Did you say mom makes [Appellant] go to
another friend’s house?
A.H.: Like to another, like someone he knows.
[CID AGENT]: Did she make him do that when you
have girlfriends that stay the night?
A.H.: (Affirmative head nod.)
[CID AGENT]: Okay. Are there any times when your
girlfriend[s] stay [the] night at your house and
[Appellant] stays the [night] too?
A.H.: No.
At an earlier point in the interview, however, AH stated
that “mom usually ma[d]e [Appellant] go to a friend’s house”
when AH had sleepovers. (Emphasis added.) In fact, later in
the interview, AH cited a specific instance when she had a
friend, “B,” at her house for a sleepover—after she had made
the sexual assault allegations against Appellant—and AH’s
mother permitted Appellant to stay in the home overnight.
Moreover, a different one of AH’s friends, “AC,” testified at
the court-martial that she also had a sleepover at AH’s house
after AH had disclosed the sexual assault to her mother, and
AC stated that Appellant remained in the home. As can be
seen then, AH’s seeming assertion at one point in the
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Opinion of the Court
videotaped interview that her mother had a strict policy of
forbidding Appellant from staying in the family home once
the mother learned of the sexual assault allegations was not
accurate. Consequently, any negative inferences the military
judge might have drawn from this assertion would, at the
very least, have been greatly diluted. In fact, instead of
prejudicing Appellant, this scenario just as easily may have
caused the military judge, as the finder of fact, to view AH’s
videotaped statement—and, by extension, her courtroom
testimony—with an increased degree of skepticism in regard
to its overall precision and accuracy.
Fourth, and perhaps most importantly, independent
evidence in the same vein as AH’s statement about sleepovers
in the videotaped interview was admitted at the court-martial
without defense objection. Specifically, a report regarding a
medical evaluation performed on AH at a “child abuse
specialty clinic” stated, inter alia, that since the time that AH
reported the sexual assault allegations to her mother,
Appellant “has not been left alone with [AH].” The military
judge could have drawn from this properly admitted report
the same information and the same inference that he could
have drawn from the improperly admitted video; namely, that
after learning of the sexual assault allegations, AH’s mother
took steps to protect AH from Appellant because AH’s mother
found AH’s allegations to be credible and she did not want
Appellant to have another opportunity to sexually assault
AH. For these reasons, we conclude that the military judge’s
error in admitting the entire videotape—which included the
particular statement at issue—did not have “a substantial
influence on the findings.” Frost, 79 M.J. at 111 (internal
quotation marks omitted) (quoting Kohlbek, 78 M.J. at 334).
Therefore, it was not prejudicial.
V. Conclusion
The military judge abused his discretion when he
erroneously admitted into evidence inconsistent portions of
AH’s videotaped statement to CID. However, the Government
has met its burden of demonstrating that this error was
harmless.
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Opinion of the Court
VI. Decision
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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