United States v. Specialist JUSTIN P. SWIFT ( 2015 )

                               TOZZI, CAMPANELLA, and CELTNIEKS
                                      Appellate Military Judges
                                  UNITED STATES, Appellee
                                  Specialist JUSTIN P. SWIFT
                                 United States Army, Appellant
                                            ARMY 20100196
                                  Headquarters, Fort Bliss
                          Michael J. Hargis, Military Judge (trial)
                      Timothy P. Hayes Jr., Military Judge (rehearing)
                  Colonel Michael J. Benjamin, Staff Judge Advocate (trial)
                 Colonel Karen H. Carlisle, Staff Judge Advocate (rehearing)
    For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Jonathan F. Potter, JA;
    Major Amy E. Nieman, JA (on brief).
    For Appellee: Colonel Mark H. Sydenham, JA; Captain Jihan Walker, JA (on brief).
                                           22 December 2015
      This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
    CAMPANELLA, Judge:
           On 10 March 2010, a panel consisting of officer and enlisted members sitting
    as a general court-martial convicted appellant, contrary to his pleas, of two
    specifications of indecent acts with a child in violation of Article 134, Uniform
    Code of Military Justice, 10 U.S.C. § 934 (2000) [hereinafter UCMJ]. The panel
    sentenced appellant to a dishonorable discharge, fourteen years confinement, total
    forfeitures, and reduction to the grade of E-1. The convening authority approved the
    sentence as adjudged.
           On 29 November 2012, this court set aside the findings and sentence and
    dismissed the specifications without prejudice because the government failed to
    allege the terminal element for both Article 134 offenses. A new trial was
    authorized by this court.
    SWIFT—ARMY 20100196
           On 22 October 2014, a military judge sitting as a general court-martial
    convicted appellant, contrary to his pleas, of two specifications of indecent acts with
    a child in violation of Article 134, UCMJ. The military judge sentenced appellant to
    a dishonorable discharge, eleven years confinement, and reduction to the grade of
    E-1. The military judge credited appellant with 1,142 days confinement credit. The
    convening authority approved the adjudged sentence and the confinement credit.
           This case is before us for review pursuant to Article 66, UCMJ. Appellant
    raises one assignment of error which warrants discussion but no relief.
           Appellant was convicted of sexually assaulting his natural daughter, KS. On
    one occasion, appellant rubbed his four-year-old daughter’s vagina over her clothing
    while they were cleaning the inside of the family van. On another occasion,
    appellant massaged his daughter’s vagina while she was lying in bed with her
    mother. KS made reports to her social worker and mental health counselor for the
    purpose of seeking medical treatment including describing an occasion when KS
    straddled appellant on the couch as he slept and appellant “peed” when he awoke;
    KS told her counselor the appellant had his hand down his pants when this occurred
    and that she had to clean it up.
           Eventually, when KS was eight years old, she made a disclosure to her third
    grade teacher, Ms. A, indicating that her father touched her inappropriately. At the
    time of appellant’s rehearing, KS was fifteen years old and could no longer recall
    the name of her third grade teacher or making the disclosure. The government
    proffered the teacher’s testimony to present KS’s disclosure as follows: “[C]an I tell
    you a secret, do you know why my daddy is in jail? He is in jail because he abused
    me, but I am supposed to say no.”
           The defense objected to the admission of this statement as hearsay. The
    military judge rejected the government’s argument that the statement was admissible
    under the residual hearsay exception, Military Rule of Evidence [hereinafter Mil. R.
    Evid.] 807. The government then attempted to admit the victim’s statement for a
    non-hearsay purpose - effect on the listener and a prior consistent statement.
          The military judge prevented the government from introducing KS’s full
    statement to Ms. A. The military judge, however, ruled as follows:
                 I’m going to allow only the fact that [Ms. A] can testify
                 as to whether or not [KS] made a complaint about a sexual
                 assault and if she identified a certain person as the perpetrator
                 under the doctrine of the victim’s outcry evidence. So, [Ms.
                 A] can limit her testimony to the fact that whether or not [KS]
    SWIFT—ARMY 20100196
                 made an outcry about a sexual assault, who she identified, and
                 then her actions as a result of that.
          Ms. A then testified that KS disclosed she was sexually assaulted by
    appellant. Ms. A also testified she notified the school counselor and filed a report
    with Child Protective Services (CPS).
           Appellant now argues the military judge’s categorization of KS’s statement
    to her teacher as victim “outcry” evidence, for which no hearsay exception
    currently exists, is error. Appellant concludes that the military judge’s failure to
    properly classify KS’s statement as a hearsay exception within the Military Rules of
    Evidence materially prejudiced a substantial right of appellant. While we agree the
    military judge committed error by labeling the evidence as “outcry” evidence, we
    conclude the error was harmless. We find KS’s statement to Ms. A admissible for a
    non-hearsay purpose. However, we find that even if the statement was not
    admissible, appellant suffered no material prejudice to any of his substantial rights
    as a result of the military judge's error.
                                  LAW AND DISCUSSION
            “We review the military judge’s ruling on the admissibility of evidence for a
    clear abuse of discretion.” United States v. Schlamer, 
    52 M.J. 80
    , 84 (1999)
    (quoting United States v. Johnson, 
    46 M.J. 8
    , 10 (1997)). “[A] military judge abuses
    his discretion if his findings of fact are clearly erroneous or conclusions of law are
    incorrect.” United States v. Ayala, 
    43 M.J. 296
    , 298 (C.A.A.F. 1995). In cases
    where we find a military judge erred when he admitted evidence, our inquiry does
    not end with the finding of error. Article 59 (a), UCMJ. “Error not amounting to a
    constitutional violation will be harmless if the factfinder was not influenced by it, or
    if the error had only a slight effect on the resolution of the issues of the case.”
    United States v. Muirhead, 
    51 M.J. 94
    , 97 (1999) (citation omitted).
           The government concedes that the military judge’s use of the term “outcry” is
    synonymous with “fresh complaint.” See Manual for Courts-Martial, United States,
    1969 (Rev. ed.) [hereinafter MCM, 1969]. Under the early rule of hue-and-cry, it
    was necessary that there be a fresh complaint in order for the fact of the complaint
    to be admitted. 4 Wigmore, Evidence (3d ed.) § 1135(A)(1)(d). See also United
    States v. Sandoval, 
    18 M.J. 55
    , 61-62 (1984). Over time, this rule has transformed.
           The evidentiary rules which applied to sexual offenses under MCM, 1969 and
    MCM, United States (1951 ed.) [hereinafter MCM, 1951], were very different from
    today’s Military Rules of Evidence. The MCM, 1969 and MCM, 1951 authorized the
    reception of evidence of “fresh complaint.” See para. 142c, MCM, 1969; para. 142c,
    MCM, 1951. Cases decided under the MCM, 1951 also recognized the relevance of
    an absence of evidence of fresh complaint entitling the accused to an instruction on
    SWIFT—ARMY 20100196
    to lack of fresh complaint. See, e.g., United States v. Goodman, 
    33 C.M.R. 195
    (1963); United States v. Mantooth, 
    19 C.M.R. 377
     (1955). The MCM, 1969 required
    that the complaint be made “within a reasonable time after” the sexual offense was
    allegedly committed, while its predecessor referred to a complaint “within a short
    time thereafter.” See para. 142c, MCM, 1969 and MCM, 1951.
            The MCM, 1969 stated that a fresh complaint “is admissible for the purpose of
    corroborating the testimony of the victim,” and not for the purpose of showing
    directly the truth of the matters stated in the complaint. See para. 142c, MCM, 1969.
    The theory of admissibility of a fresh complaint arose out of the outdated belief that
    it is “natural” to expect the victim of such a crime would complain of it. United
    States v. Sandoval, 
    18 M.J. 55
    , 63 (C.A.A.F. 1984). Since the fact of the complaint
    is admissible to corroborate the alleged victim, the victim must have been a witness.
    See DA Pamphlet 27-2, Analysis of Contents, MCM, United States, 1969, Revised
    edition, para. 142c.
          When the corroboration requirement was deleted from the MCM, 1969, the
    hearsay exception for fresh complaint was also removed as unnecessary. See MCM,
    United States (2008 ed.) [hereinafter MCM, 2008], App. 22, Mil R. Evid. 412, p.
    A22-36. The notion of fresh complaint, however, was subsumed into other hearsay
    exceptions – not eliminated altogether. 1 Id.
           Based on the forgoing, we conclude, first, that the military judge
    inappropriately applied the outdated “victim outcry” principle. Nonetheless, we
    agree that a non-hearsay basis exists to allow the admission of the statement –
    namely, effect-on-the-listener. KS’s out-of-court statement is not barred by Mil. R.
    Evid. 802 because it was not offered for the truth of the matter asserted. Despite the
    military judge’s ruling on the out-of-date notion of “outcry doctrine,” the trial
    counsel specifically offered the victim’s statement as “effect on the listener” and as
    a “prior consistent statement.” The statement was properly offered to show why Ms.
    A contacted CPS and how the investigation ensued. 2
           Assuming arguendo, the military judge erred and, it was inadmissible hearsay,
    we consider whether the military judge’s erroneous admission of Ms. A’s testimony
    caused material prejudice to appellant's substantial rights. We test for prejudice
    resulting from the erroneous admission of evidence by examining ‘“(1) the strength
      [E]vidence of fresh complaint will be admissible under the Military Rule only to
    the extent that it is either not hearsay, see Rule 801(d)(1)(B), or fits within an
    exception to the hearsay rule. See subdivisions (1), (2), (3), (4), and (24) of Rule
    803.” See MCM, 2008, App. 22, Mil R. Evid. 803, p. A22-36.
     The statement may also have been admitted as a prior consistent statement. The
    foundation for that, however, was not clearly articulated and developed on the
    SWIFT—ARMY 20100196
    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.’” United
    States v. Durbin, 
    68 M.J. 271
    , 275 (C.A.A.F. 2010) (quoting United States v. Kerr,
    51 M.J. 401
    , 405 (C.A.A.F. 1999)).
          Applying the first Kerr factor to the case before us, the government’s case
    was strong. Appellant admitted to sexual contact with his daughter on at least two
    occasions. He admitted that on one occasion while lying in bed with his wife and
    daughter, he rubbed KS’s vagina for ten to fifteen seconds, thinking it was his wife.
    KS testified appellant touched her on the vagina using a “massaging motion” on
    several occasions. In addition, KS made detailed child-like reports to her social
    worker and mental health care provider for the purpose of seeking medical
           Regarding the second factor, the defense’s case is markedly less substantial.
    Appellant’s statement that he mistakenly believed he was touching his wife’s vagina
    and not his seven year old daughter was implausible, considering his wife was
    considerably larger than KS at the time. Appellant’s excuse of sleep disorder was
    not borne out in evidence. While KS made a prior inconsistent statement recanting
    her story, she explained that she did so because she was scared. KS’s behavior was
    also supported by a government expert who offered expert opinion on child
          Third, as to the materiality of the testimony, it was not great. The statement
    was not detailed. It came later in time to disclosures KS made to others regarding
    appellant’s conduct, including KS’s disclosure to her social worker and therapist.
          Finally, the disclosure was not vital to the Government's case nor fatal to
    appellant's. The quality of Ms. A’s contribution to the Government's case was also
    not particularly significant.
          Assuming the military judge committed error in this case, and applying the
    Kerr test for prejudice, we conclude that appellant suffered no material prejudice to
    any of his substantial rights as a result of the military judge's error.
          On consideration of the entire record and the submissions of the parties, the
    findings of guilty and the sentence are AFFIRMED.
          Senior Judge TOZZI and Judge CELTNIEKS concur.
    SWIFT—ARMY 20100196
                          FOR THE
                          FOR THE COURT:
                          MALCOLM H. SQUIRES, JR.
                          MALCOLM H. SQUIRES, JR.
                          Clerk of Court
                          Clerk of Court

Document Info

DocketNumber: ARMY 20100196

Filed Date: 12/22/2015

Precedential Status: Non-Precedential

Modified Date: 1/4/2016