United States v. Bess, Jr.

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, J. MCFARLANE, M.C. HOLIFIELD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
PEDRO M. BESS, JR.
HOSPITALMAN SECOND CLASS (E-5), U.S. NAVY
NMCCA 201300311
GENERAL COURT-MARTIAL
Sentence Adjudged: 8 March 2013.
Military Judge: CDR Douglas P. Barber, JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: LCDR S.J. Gawronski,
JAGC, USN.
For Appellant: Maj John J. Stephens, USMC.
For Appellee: LT Ian D. MacLean, JAGC, USN.
28 October 2014
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
MITCHELL, Chief Judge:
A general court-martial consisting of officer and enlisted
members convicted the appellant, contrary to his pleas, of two
specifications of attempting to commit an indecent act and four
specifications of committing indecent acts, in violation of
Articles 80 and 120, Uniform Code of Military Justice, 10 U.S.C.
§§ 880 and 920. The appellant was sentenced to confinement for
two years and a dishonorable discharge. The convening authority
(CA) deferred and then waived automatic forfeitures for a period
of six months, but otherwise approved the sentence as adjudged
and, except for the dishonorable discharge, ordered it executed.
The appellant now alleges three assignments of error:
1) that the military judge abused his discretion in allowing
muster reports into evidence when requested by the members
during their deliberations; 2) that he was denied a fair trial
when the military judge denied his request for an expert
consultant in the field of eyewitness identification; and, 3)
that the findings of guilt are legally and factually
insufficient.
After carefully considering the record of trial, the
parties’ pleadings, and the appellant’s assignments of error, we
conclude that the findings and the sentence are correct in law
and fact and that no error prejudicial to the substantial rights
of the appellant was committed. Arts. 59(a) and 66(c), UCMJ.
Factual Summary
During the time of the charged offenses, the appellant was
assigned to the Naval Branch Health Clinic Dam Neck, Virginia
Beach, Virginia, as an x-ray technician.1 While in the
performance of his duties as an x-ray technician, the appellant
on several occasions told female patients that they had to be
completely naked during the taking of their x-rays and on a few
occasions had the patients sign a form consenting to this
requirement. At trial, it was established that patients never
need to be completely naked during an x-ray and that there is no
consent form for nudity in the X-ray Department at the Dam Neck
or Oceana Health Clinics.
At the time of the alleged offenses, there were a total of
five x-ray technicians working out of the Dam Neck and Oceana
Branch Health Clinics, two of whom, including the appellant,
were described as being African-American males. One of the
African-Americans, Hospitalman Third Class (HM3) P was a tall,
thin, dark-complexioned, 23-year-old Haitian-American male with
a thick cultural accent. The appellant, a Hospitalman Second
Class (HM2), did not have a foreign accent and was approximately
twenty-six years old. He had a lighter skin tone and a more
1
Although he was assigned to the Naval Branch Health Clinic Dam Neck, he
additionally worked at Branch Health Clinic Oceana, Virginia Beach, Virginia.
2
stocky/muscular build than HM3 P. Additional facts relevant to
the assignments of error are developed below.
Legal and Factual Sufficiency
Witness identification of the appellant is integral to all
three of his assignments of error and, taking them out of the
order submitted, we begin with his allegation that the evidence
presented at trial was factually and legally insufficient to
support his convictions. The appellant argues, inter alia, that
all in-court identifications were suggestive and dated as in at
least one case, the alleged misconduct happened two years
earlier; and that the appellant’s name was “suggested” to the
alleged victims by the Government. The appellant contends that
this evidence is unreliable and therefore factually and legally
insufficient to support his convictions.2 We disagree.
Standard of Review
We review questions of legal and factual sufficiency de
novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). We review the legal sufficiency of the evidence by
determining “whether, considering the evidence in the light most
favorable to the prosecution, any reasonable fact-finder could
have found all the essential elements beyond a reasonable
doubt.” United States v. Day, 66 M.J. 172, 173-74 (C.A.A.F.
2008) (citing United States v. Turner, 25 M.J. 324, 324 (C.M.A.
1987)). The test for factual sufficiency is whether “after
weighing all the evidence in the record of trial and recognizing
that we did not see or hear the witnesses as did the trial
court, this court is convinced of the appellant’s guilt beyond a
reasonable doubt.” United States v. Rankin, 63 M.J. 552, 557
(N.M.Ct.Crim.App. 2006) (citing Turner, 25 M.J. at 325 and Art.
66(c), UCMJ), aff'd, 64 M.J. 348 (C.A.A.F. 2007). Beyond a
2
The defense argues that the alleged victims’ medical records listing the
appellant as the x-ray tech were unreliable and that there was suggestibility
during the Naval Criminal Investigative Service (NCIS) screening interviews
with the victims, which led to eyewitness identification problems. Record at
37. Several of the victims did not have the appellant’s identifying skull
and crossbones x-ray marker on their x-rays. Id. at 38-39. When NCIS first
started investigating, they conducted screening interviews, where the
interviewees verbally described their x-ray tech. Id. at 40. NCIS never
conducted a visual identification through a photographic or in-person line-
up. Id. The defense specifically took issue to PG, LS3 DB, and AM2 AL’s
identifications of the appellant, which had taken place at the Article 32
hearing after the NCIS screening interviews, and noted that BS had not yet
visually identified the appellant since she had testified via phone at the
Article 32 hearing. Id. at 38, 41, 45.
3
reasonable doubt, however, does not mean that the evidence must
be free from conflict. Id.
Discussion and Analysis
The appellant does not dispute that he was the x-ray
technician for three of the alleged victims in this case: OS3,
Lance Corporal (LCpl) JE, and LCpl AA. Appellant’s Brief of 10
Feb 2014 at 38. We therefore outline all charges to which the
appellant was found guilty and review in greater depth the
identifications of the appellant by Logistics Specialist Third
Class (LS3) DB, Aviation Structural Mechanic Second Class (AM2)
AL, PG, and BS.
LS3 DB (Charge I, Specification 1)
LS3 DB went to the Branch Medical Clinic Oceana for hip x-
rays on the morning of 10 March 2011. An older, white gentleman
was her x-ray tech at that time, and he gave her two gowns to
wear for the x-rays because she was not wearing shorts. The x-
rays could not be completed at that time.
Around 1600, she went back to the x-ray department. The
appellant first told LS3 DB that she needed to change into a
gown, but later came back to say she must be completely naked
for the x-rays. The appellant told her that she would have to
sign a form consenting to remove all of her clothing and that he
did not have a female stand-by available. LS3 DB stated she was
uncomfortable with being naked because she had been able to wear
a gown along with her undergarments and a t-shirt in preparation
for the x-ray that morning. The appellant left, then came back
and stated that the type of x-ray had been changed so that she
did not need to be nude. The x-rays were then taken.
At trial, LS3 DB described her second x-ray tech as an
African-American second class petty officer, who was around six
feet in height and of stocky build. He did not have a foreign
accent. In her original statement to the Naval Criminal
Investigative Service (NCIS) in November 2011, LS3 DB had also
identified her x-ray tech as an African American male HM2, who
appeared to be in his twenties. At the Article 32, LS3 DB
testified in person and identified the appellant as the x-ray
tech in question, as she did again at trial. LS3 DB’s medical
records indicate her x-rays were performed after 1647 by the
appellant. After 1600, per the Branch Medical Clinic’s standard
3
The appellant was acquitted on all charges concerning OS.
4
operating procedure, only one x-ray tech is present at the
Oceana clinic.
LCpl AA (Charge I, Specification 2)
LCpl AA had x-rays at the Branch Clinic Dam Neck due to a
snowboarding injury and went to Oceana to pick them up. At
Oceana, the appellant told her she needed two sets of additional
x-rays: one wearing shirt and shorts and the other completely
undressed. The appellant then told her that the first set of x-
rays were no longer necessary and to get completely undressed.
LCpl AA argued with him about the necessity of being undressed,
but the appellant insisted that she needed to be “completely
naked.” Record at 703. After further pushback on the issue,
the appellant told her he would print out her original x-rays.
LCpl AA identified the appellant by name and pay grade at the
Article 32 investigation held from 12-13 June 2012, and the
appellant acknowledged that LCpl AA was one of his patients in a
statement to a command investigator. Appellate Exhibit CVI at
4.
PG (Charge II, Specification 1)
PG’s doctor ordered x-rays because she was having back and
neck pain after a car accident. An older white male tech and
appellant were waiting for her in the x-ray room. The older
gentleman told her to remove her bra and jacket, but leave on
her tank top, for her x-rays.4
The older gentleman left and the appellant told her that he
needed to take “more invasive” x-rays because her “doctor wanted
to check out every part of [her] body.” Record at 764. After
the appellant told her to get completely undressed, the
appellant took what PG believed to be several x-rays of her in
different positions while she was naked, including purported
chest and pelvic x-rays. As she lay naked on the examination
table, the appellant had her put her feet together with her legs
splayed open and place her chest against the x-ray table with
her hips propped on a block, her feet together, and her back
arched.
4
At trial, PG was cross-examined on her October 2011 statement to NCIS, where
she stated that the white male x-ray tech was present during the original x-
rays and that she was topless at that time. AE LXXX at 2. At trial, she
stated that she might have been confused when she told that to the agent and
that the white male tech was not present while she was naked. Record at 788,
792-93.
5
PG’s medical records presented at trial show no pelvic x-
rays. Another radiology tech testified that it is possible for
a tech to cause the x-ray machine to make sounds without
actually capturing an image and that x-rays not sent to a doctor
are purged at the end of the month.
In her statement to NCIS, she stated that her second x-ray
tech was a black male who was approximately 5’9” in height and
no more than 25 years old. PG testified in person at both the
Article 32, UCMJ, hearing and at trial, and identified the
appellant as the x-ray tech in question. She did not recognize
a picture of HM3 P when shown one at the Article 32 hearing. At
trial, she said she remembered that the tech’s name started with
“B” when NCIS first questioned her. PG’s medical records also
indicate her x-rays were performed after 1709 by the appellant
on 24 February 2011.
AM2 AL (Charge II, Specification 2)
AM2 AL’s flight surgeon ordered x-rays in order to refer
her to a chiropractor. She went to the x-ray department at
Oceana and a female tech took x-rays of her back while she was
lying down. On the evening of 25 February 2011, AM2 AL returned
to the x-ray department at Oceana because her doctor needed x-
rays of her back while she was standing.
The appellant gave her a gown and then told AM2 AL to wear
nothing except for the gown. After she had changed, the
appellant came back into the room and told her that the doctor
had requested the x-rays be taken without a gown. While he was
gone, she took off the gown as directed, leaving her completely
naked. He came back in and gave her a form that appeared to be
from the doctor and that said the x-rays had to be taken with no
gown or clothing on. The appellant then took a series of x-rays
while she was standing and completely naked. Throughout that
process, her breasts, buttocks, and vaginal area were exposed.
She stated that she was in the examination room for
approximately 20 minutes.
In AM2 AL’s NCIS statement in November 2011, she described
her second x-ray tech at the Oceana clinic as a “black male . .
. HM2.” AE XXV at 30. At the Article 32 hearing, she testified
in person and identified the appellant as her x-ray tech. At
trial, she stated she remembered specifically that the tech was
an HM2 and that he was a tall, black male, and identified the
appellant as that person. AM2 AL’s medical records indicate her
6
x-ray was performed around 1800 by the appellant. Prosecution
Exhibit 2 at 4.
LCpl JE (Charge II, Specification 3)
LCpl JE went to get x-rays of her hip at the Dam Neck
clinic. The first day, her x-ray tech was an African-American
male with a “Jamaican type accent,” and she wore paper shorts
and a t-shirt during the x-rays. She came back the next day for
additional x-rays. At that time, the appellant told her that
she would have to be nude and sign a consent form. She removed
all of her clothing and then put on a gown that was on the
examination table. The appellant then told her she would have
to take the gown off. As she removed the gown the appellant had
her lay chest against the x-ray table with her hips propped on a
block, her feet together with her legs splayed open, and her
back arched. In July 2011, JE described this conduct in a
statement to her command and identified the appellant by name.
AE CVI at 3.
At trial, a female nurse testified that she had worked with
the appellant at Dam Neck and remembered acting as a standby for
a female patient with the same last name as LCpl JE. She
testified that she was present for the entire procedure and that
the patient’s private areas were not exposed during the
procedure. LCpl JE testified that no one was present with the
appellant during her x-rays.
BS (Charge II, Specification 4)
At the time of the incident in May 2011, BS was an enlisted
Sailor attempting to cross-rate to air crew. As part of that
process, she had to have a chest x-ray at the Oceana clinic.
The appellant told her that she needed to remove her blouse, t-
shirt, and bra in order to take chest x-rays. During some of
the x-rays, her breasts were exposed.
In BS’s statement to NCIS in November 2011, she described
her x-ray tech as a black male who appeared to be in his
twenties and of approximately her height of 71 inches. At the
Article 32, BS testified via telephone. She described her x-ray
tech as an African-American male who was around 5 feet 11 inches
to 6 feet in height. Although she did not remember his name,
she remembered that he did not have a foreign accent. Trial
counsel never asked her to identify the appellant as her x-ray
technician at trial, and she stated she believed that her x-ray
tech was a third class petty officer. However, BS’s medical
7
records indicate her x-rays were performed by the appellant on
the morning of 4 May 2011. Her x-rays also display the
appellant’s x-ray marker “PMB” with skull and crossbones.
In appellant’s case, the evidence of his guilt was
overwhelming. Each victim’s allegations and in-court
identifications (with the exception of BS) were supported by
other evidence that the appellant was her x-ray tech. In
addition, each victim’s testimony at trial supported the charges
resulting in convictions. We find unpersuasive the appellant’s
argument that the identification of the appellant as the
perpetrator of these offenses was somehow suggested by the
Government. We likewise do not find evidence that the in-court
identifications of the appellant were unreliable.
After carefully reviewing the record of trial and
considering the evidence in the light most favorable to the
prosecution, we are convinced that a reasonable fact-finder
could have found all the essential elements beyond a reasonable
doubt. Furthermore, after weighing all the evidence in the
record of trial and having made allowances for not having
personally observed the witnesses, we are convinced beyond a
reasonable doubt of the appellant's guilt.
Expert Assistance
Somewhat related to the previous AOE as it pertains to the
reliability of in-court identifications, we next consider the
appellant’s contention that he was denied a fair trial when the
military judge denied his request for an expert consultant in
the field of eyewitness identification.
We review a military judge's ruling on a request for expert
assistance for an abuse of discretion. United States v. Gunkle,
55 M.J. 26, 32 (C.A.A.F. 2001). An appellant must demonstrate
necessity to be entitled to expert assistance provided by the
Government. Id. at 31. Necessity requires more than a mere
possibility the requested expert would be of assistance. Id.
Rather, the accused must demonstrate a reasonable probability
“‘both that an expert would be of assistance to the defense and
that denial of expert assistance would result in a fundamentally
unfair trial.’” Id. at 31-32 (quoting United States v.
Robinson, 39 M.J. 88, 89 (C.M.A. 1994)) (additional citation
omitted). The Court of Appeals for the Armed Forces has adopted
a three-pronged test for determining necessity: “(1) Why is the
8
expert needed? (2) What would the expert accomplish for the
defense? and (3) Why is the defense counsel unable to gather and
present the evidence that the expert assistant would be able to
develop?” Id. at 32 (citing United States v. Ford, 51 M.J. 445,
455 (C.A.A.F. 1999)) (additional citations omitted).
“In determining whether the military judge abused his
discretion in denying the defense’s request for an expert
consultant, each case turns on its own facts.” United States v.
Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005). For this court to
reverse for an abuse of discretion, there must be “far more than
a difference in . . . opinion” with the trial court. Id.
(quoting United States v. Travers, 25 M.J. 61, 62-63 (C.M.A.
1987)). “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.” United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008)
(citations omitted).
As a preliminary matter, we find the military judge’s
findings of fact devoid of error and adopt them as our own. We
also find that his conclusions of law were not “influenced by an
erroneous view of law.” Id.; CVI at 8. Additionally, as
discussed below, we find that the appellant failed to satisfy
any of the three prongs to demonstrate necessity for the
requested expert assistance.
First, the appellant’s identity was not an issue in
significant controversy because all of the crimes of which the
appellant was convicted occurred during medical examinations by
a male x-ray tech of African-American decent, either at Oceana
or Dam Neck. The only two possible suspects were HM3 P and the
appellant. Each victim had substantial time with the appellant
in a clinical setting and had conversations with him. LCpl JE
and LCpl AA identified the appellant by name. LS3 DB, AM2 AA,
BS, and PG’s medical records connect the appellant to the time
period of the charged events. Additionally, two of those four
identified the tech as an “HM2” prior to the Article 32 hearing.
Therefore, the appellant’s contention that the victims’ eye-
witness identifications of him were faulty is untenable. See
generally Neil v. Biggers, 409 U.S. 188, 199-200 (1972)
(articulating five-factor test for determining the admissibility
of pretrial and in-court identifications, which includes the
witness’ opportunity to view the criminal at the time of the
crime, the witness’ degree of attention, the accuracy of
9
witness’ prior description of criminal, the level of certainty
of the witness at confrontation, and the length of time between
crime and confrontation).
Second, the defense failed to establish what the expert
would accomplish for the appellant. At best, the defense
articulated only a mere possibility of assistance from the
requested expert, which does not provide the requisite showing
of necessity. Gunkle, 55 M.J. at 31.
Third, the defense failed to establish why counsel was
unable to gather and present the evidence that the expert would
be able to develop. This aspect of the trial judge’s ruling is
vindicated by trial defense counsel’s able cross-examination of
each prosecution witness, argument regarding identification
issues in closing, and motion to suppress the Article 32
eyewitness identifications of the appellant.5
Finally, we conclude that denial of the appellant’s request
for expert assistance did not “result in a fundamentally unfair
trial.” Id. at 31-32. Accordingly, we find that the military
judge did not abuse his discretion when he denied the
appellant’s motion to compel production of an expert consultant
in eyewitness identification.
Hearsay and Testimonial Evidence
Lastly, we consider the appellant’s argument that the
military judge erred when he admitted muster reports the members
requested during their deliberations over defense objection. He
first contends that the muster reports do not satisfy the
requirements of a record of regularly conducted activity under
MILITARY RULES OF EVIDENCE 803(6), MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.). He next argues that the muster reports are
testimonial and that admitting those records during
deliberations without the ability to confront the records
custodian or present further argument in front of the members
5
The defense also made a motion to suppress LS3 DB, AM2 AL, and PG’s
eyewitness identifications of the appellant at the Article 32 hearing and to
prevent those witnesses from identifying the appellant at trial. AE XXV;
Record at 61. That motion came down to the question of whether the
appellant’s presence at the defense table at the Article 32 hearing, combined
with his being the only African-American at the table at the time of the
identification, constituted an unnecessarily suggestive identification
procedure. AE CVI at 10. The military judge also denied that motion,
finding that the Government proved by a preponderance of the evidence that
the identifications were reliable under the circumstances. Id. at 11.
10
violates his constitutional right of confrontation. We disagree
with both contentions.
The appellant’s arguments rely upon his contention that at
least four of the victims inaccurately identified him as the
perpetrator, thereby making the muster reports uniquely
important because they corroborate his presence at the x-ray
clinic on many of the charged dates.
Muster Reports
During the appellant’s sworn testimony at trial, the trial
counsel asked him if he was aware of muster logs maintained by
the administrative department, and the appellant responded that
he was. Record at 1227. Trial counsel did not mark those logs
as prosecution exhibits but used them to cross-examine the
appellant on how he was marked present on the charged dates of
24 February, 10 and 17 March, 13 April, and 4 May 2011. The
trial counsel also cross-examined the appellant on the logs
marking him as a late stay, meaning the afternoon shift, on 24
February and 10 March. In his closing argument, the civilian
defense counsel argued that the Government must not have had the
muster reports because the trial counsel never marked them as an
exhibit. Id. at 1366.
While the members were deliberating, they returned and
asked for additional documentary evidence that was mentioned in
closing arguments, including the muster reports. In an Article
39(a), UCMJ, session regarding the admissibility of the muster
reports, the military judge allowed only those referenced during
the appellant’s cross examination.
The trial counsel called Ms. W, an administrative assistant
at Branch Medical Clinic Oceana in charge of personnel matters,
to authenticate the reports. She testified that the muster
reports were created by 0800 every morning by administrative
personnel and that she maintained those reports in the regular
course of business. She printed off the muster reports upon
trial counsel’s request. Because the dates of the musters were
listed in each document’s file name and not in the text of the
document, she hand-wrote the corresponding date on each
printout.
The defense objected to the reports as not generated or
maintained in the regular course of business and as unreliable.
Record at 1467-68. The military judge found that the reports
were sufficiently reliable and were generated in the regular
11
course of business. The members received those documents and
returned with their verdict approximately thirty minutes later.
Records of Regularly Conducted Activity
We first address the appellant’s argument that the muster
reports were improperly admitted as records of regularly
conducted activity. We review a military judge’s decision to
admit evidence under an abuse of discretion standard. United
States v. Barnett, 63 M.J. 388, 394 (C.A.A.F. 2006). This
standard is a “‘strict one’” and requires that the challenged
action be “‘arbitrary, fanciful, clearly unreasonable, or
clearly erroneous’” in order for relief to be granted. United
States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013) (quoting
United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010)). We
find the military judge did not abuse his discretion in
admitting the muster reports.
MIL. R. EVID. 803(6) recognizes the business record exception
to the general rule precluding the use of hearsay evidence.6
Generally, such records are admissible if prepared in the
regular course of business and when recorded by a person who has
knowledge of the event recorded, at or near the time of the
event. United States v. Harris, 53 M.J. 514, 521
(N.M.Ct.Crim.App. 2000), aff’d, 55 M.J. 433 (C.A.A.F. 2001).
The proponent of the records need only show by a preponderance
of the evidence that the records meet these requirements to
establish their admissibility. United States v. Tebsherany, 32
M.J. 351, 355 (C.M.A. 1991).
Upon review of the evidence on this issue, we find the
standard has been met. The muster logs were authenticated by an
administrative assistant at Branch Medical Clinic Oceana who was
in charge of personnel matters. She testified that the muster
reports were created every morning by administrative personnel
and that she maintained those reports in the regular course of
business. Accordingly, we find that the military judge did not
abuse his discretion in admitting the muster logs.
Testimonial Hearsay
We now turn to whether the muster reports are testimonial
as contemplated by United States v. Crawford, 541 U.S. 36 (2004)
and find that they are not. Rankin, 64 M.J. at 352, outlines
6
We note the text of MIL. R. EVID. 803(6) specifically lists “morning reports
and other personnel accountability documents” as “normally admissible” under
this rule.
12
three factors to differentiate between testimonial and non-
testimonial hearsay: (1) whether the statement was elicited by
or made in response to law enforcement or prosecutorial inquiry,
(2) whether the statement involved “more than a routine and
objective cataloging of unambiguous factual matter,” and (3)
whether the primary purpose for “making, or eliciting, the
statement was the production of evidence with an eye toward
trial.” In applying these factors, the goal is “‘an objective
look at the totality of the circumstances surrounding the
statement to determine if the statement was made or elicited to
preserve past facts for a criminal trial.’” United States v.
Harris, 66 M.J. 781, 788 (N.M.Ct.Crim.App. 2008) (quoting United
States v. Harcrow, 66 M.J. 154, 158 (C.A.A.F. 2008)) (additional
citations omitted).
Here, the muster reports were created every day and
preserved in the course of business by the command. They were
created for personnel reasons and not for the purpose of trial
or prosecution. The muster logs contained a catalogue of
unambiguous facts: each person’s work schedule and presence or
absence on that date. The muster reports were not created with
an eye toward trial of the appellant. Ms. W’s hand written
notes on the documents merely reflected the document’s pre-
existing title, which did not appear in the text of the
document.
As a result, the muster reports were not testimonial and
their admission into evidence did not violate the appellant’s
Sixth Amendment right to confrontation. See Harris, 66 M.J. at
789. Furthermore, the appellant did have the opportunity to
cross-examine the records custodian and present the testimony of
an additional witness regarding the reliability of those
documents before the military judge admitted them into evidence.
See Record at 1451. Finally, the muster reports had already
been mentioned and explained during the appellant’s cross-
examination.
In view of the strength of the evidence against the
appellant, even if the muster reports were improperly admitted,
the error was harmless beyond a reasonable doubt. See Harris,
66 M.J. at 789; see also United States v. Brewer, 61 M.J. 425,
432 (C.A.A.F. 2005). The muster reports showed only what had
already been presented at trial through the appellant’s cross-
examination. Each victim provided an identifying description of
the appellant in her statement to NCIS. All the victims in
question had medical records listing the appellant as their x-
ray tech on the charged dates. LS3 DB, AM2 AL, and PG
13
identified the appellant as their x-ray tech at the Article 32
hearing and in-court and had their x-rays taken after 1600, when
generally only one x-ray tech was present at the Oceana clinic.
BS remembered that her x-ray tech did not have a foreign accent,
and her x-rays displayed the appellant’s specific x-ray marker
“PMB” with skull and crossbones. We therefore decline to grant
relief.
Conclusion
Accordingly, the findings and the sentence as approved by
the CA are affirmed.
Senior Judge MCFARLANE and Judge HOLIFIELD concur.
For the Court
R.H. TROIDL
Clerk of Court
14