United States v. Norwood ( 2021 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Matthew D. NORWOOD,
Machinist’s Mate Nuclear First Class Petty Officer
United States Navy, Appellant
No. 20-0006
Crim. App. No. 201800038
Argued October 27, 2020—Decided February 24, 2021
Military Judge: Shane E. Johnson
For Appellant: Lieutenant Commander Chris Riedel, JAGC,
USN (argued); Captain Nicholas S. Mote, USMC.
For Appellee: Major Kerry E. Friedewald, USMC (argued);
Lieutenant Commander Timothy C. Ceder, JAGC, USN,
Lieutenant Colonel Nicholas L. Gannon, USMC, and Brian
K. Keller, Esq. (on brief).
Chief Judge STUCKY delivered the opinion of the Court,
in which Judge MAGGS and Senior Judge EFFRON
joined. Judge OHLSON filed a separate opinion
concurring in the result. Judge SPARKS filed a separate
opinion concurring in part and dissenting in part and in
the result.
_______________
Chief Judge STUCKY delivered the opinion of the Court.
Appellant claims that the military judge erred during his
court-martial by admitting the majority of the videotaped fo-
rensic interview of the alleged victim as a prior consistent
statement under Military Rule of Evidence (M.R.E.)
801(d)(1)(B)(ii) and mishandling supposed improper argu-
ment by the trial counsel. The United States Navy-Marine
Corps Court of Criminal Appeals (CCA) found that some er-
rors did occur, but that they nevertheless did not materially
prejudice Appellant’s substantial rights. We hold that while
the interview was properly admitted as a prior consistent
statement, the improper argument prejudiced Appellant as to
sentencing, and reverse.
United States v. Norwood, No. 20-0006/NA
Opinion of the Court
I. Procedural History
Appellant was investigated and prosecuted for sexually
abusing his niece, EN. The panel of officers that sat as a gen-
eral court-martial convicted Appellant, contrary to his plea,
of one specification of sexual abuse of a child, in violation of
Article 120b, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 920b (2012). The panel then sentenced Appellant to
a dishonorable discharge, confinement for eighteen months,
and reduction to the grade of E-1. The convening authority
approved the adjudged sentence. On appeal, the CCA af-
firmed the findings with exceptions and affirmed the sen-
tence. United States v. Norwood, 79 M.J. 644, 661–62, 666–67
(N-M. Ct. Crim. App. 2019).1
II. Prior Consistent Statement
A. Facts
The first issue is whether the military judge erred by ad-
mitting the substantive portions of EN’s videotaped forensic
interview as a prior consistent statement under M.R.E.
801(d)(1)(B)(ii) such that Appellant was prejudiced.
As the primary source of the Government’s evidence
during the court-martial, EN testified about the events as
follows.
In late December 2015, EN and her brother, RJ, stayed
with Appellant for a brief visit. At the time, EN was fifteen
years old and RJ was twelve. One night, Appellant and EN
watched a movie on the couch in the living room, while RJ
played a video game on Appellant’s computer in the bedroom.
During the movie, Appellant asked EN if she wanted a mas-
sage. When EN replied yes, Appellant said, “ ‘I don’t want you
1 Although not relevant to the granted issues, we note that the
lower court excepted certain words from the specification. 79 M.J.
at 661. Appellant was charged and convicted of sexually abusing
EN by touching her “breast, buttocks, groin, and inner thigh.” The
CCA, however, found that Appellant’s conviction was legally and
factually sufficient only as to Appellant’s “touching EN’s breast,
buttocks, and thigh,” and therefore excepted the words “groin” and
“inner” from the specification. Id. Nevertheless, the court decided
that those exceptions did not “change . . . the penalty landscape”
and therefore affirmed the sentence as adjudged. Id. at 662.
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Opinion of the Court
to get mad at me, but I need you to take your bra off.’ ” EN did
so and Appellant proceeded with the massage. Initially, he
simply massaged her back, but then he began to touch her
around her stomach, breast, and pubic areas. Even though
EN became tense and pushed his hand away, he continued
touching her and moved her so that she was sitting on him
such that she could feel his erect penis. Then, he asked her
“how far [she] had been with someone and if there was a boy
back [home].” When she said that she had only kissed one boy
in fourth grade, he responded that “ ‘that didn’t count’ ” and
pushed her off of him. EN then left the room, eventually re-
turning to watch another movie with Appellant and RJ. The
next day, Appellant apologized to EN, saying “ ‘I’m sorry for
being an asshole the other night.’ ”
EN believed that Appellant had “touched [her] inappropri-
ately” and “for sexual purposes.” Consequently, she tried to
avoid Appellant as much as possible for the rest of the trip
and felt that the remainder of the visit was “really awkward.”
When she returned home, she had trouble sleeping, spending
time with her friends, and being physically close to anyone,
especially boys in her class. Still, she did not tell anyone what
had happened, because she thought that she was at fault and
feared that Appellant would hurt her if she told. Additionally,
she wanted her parents to know and help her, but did not tell
them because she worried about disappointing them. How-
ever, a few weeks later, she talked about the incident with her
best friend. The friend told her father, who informed EN’s
stepfather. Appellant subsequently was charged with sex-
ually abusing EN.
After EN’s direct testimony at the court-martial, the
defense sought to undermine her credibility through
cross-examination. In particular, the defense asked EN about
how she had not spoken with the defense before the
court-martial, her mother had not wanted her to talk to the
defense, and she had met with the prosecution a number of
times before the court-martial. Following up about the
meetings with the prosecution, the defense asked if the
prosecution had told her to “ ‘[j]ust tell the truth’ ” and
whether she had “had to practice to tell the truth” before. On
redirect, the Government sought to rehabilitate EN’s
credibility by introducing her videotaped forensic interview
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Opinion of the Court
as a prior consistent statement. The defense objected, arguing
that the interview was inadmissible hearsay. The military
judge then called an Article 39(a), UCMJ, 10 U.S.C. § 839(a)
session to develop the record regarding the issue. After
hearing arguments by both the Government and defense, the
military judge agreed with the Government’s assertion that
the defense had attacked EN’s credibility by suggesting that
the prosecution had coached her testimony and that EN’s
statements from the interview were consistent with those
that she made during her court-martial testimony. As a
result, the military judge found that the interview, with the
exception of the introductory rapport building discussion, was
admissible as a prior consistent statement under M.R.E.
801(d)(1)(B)(ii). The Government then played that interview
for the members.
On appeal, the CCA analyzed whether the interview was
admissible as a prior consistent statement. Norwood, 79 M.J.
at 654–57. The lower court agreed with the military judge
that the Government was permitted to introduce EN’s inter-
view as a prior consistent statement because the defense had
implied that the trial counsel had coached EN’s testimony
and the statements from the interview were consistent with
the statements from the testimony. Id. at 656. However, the
court then found that the alleged coaching was a charge of
recent fabrication or recent improper influence, rather than
that of an attack on another ground, meaning the military
judge should have admitted the interview under M.R.E.
801(d)(1)(B)(i) instead of M.R.E. 801(d)(1)(B)(ii). Id. But be-
cause the interview was still admissible, just pursuant to a
different provision, it found that the military judge’s error did
not prejudice Appellant. Id.
B. Law
We review a military judge’s decision to admit evidence for
an abuse of discretion. United States v. Finch, 79 M.J. 389,
394 (C.A.A.F. 2020) (quoting United States v. Frost, 79 M.J.
104, 109 (C.A.A.F. 2019)). The military judge’s decision con-
stitutes an abuse of discretion if “his findings of fact are
clearly erroneous, the court’s decision is influenced by an er-
roneous view of the law, or [his decision] is outside the range
of choices reasonably arising from the applicable facts and the
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Opinion of the Court
law.” Id. (internal quotation marks omitted) (citation omit-
ted). If the military judge did improperly admit evidence, we
evaluate whether the error prejudiced the appellant, weigh-
ing “(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 ques-
tion.” United States v. Kohlbek, 78 M.J. 326, 334 (C.A.A.F.
2019) (internal quotation marks omitted) (quoting United
States v. Norman, 74 M.J. 144, 150 (C.A.A.F. 2015)).
Hearsay statements—out of court statements offered into
evidence to prove the truth of the matter asserted—usually
are inadmissible in courts-martial. M.R.E. 801(c); M.R.E. 802.
However, a prior consistent statement made out of court may
not constitute hearsay, and thus can be admitted as substan-
tive evidence, if certain threshold requirements are first met:
(1) the declarant of the statement testifies at the court-mar-
tial, (2) the declarant is subject to cross-examination, and (3)
the statement is consistent with the declarant’s testimony.
Finch, 79 M.J. at 394–95 (citing M.R.E. 801(d)(1)(B)). The
first prong of M.R.E. 801(d)(1)(B) requires the prior consistent
statement to be 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.’ ” Id. at
394 (quoting M.R.E. 801(d)(1)(B)(i)). Under the second prong
of the rule, the statement must be offered “ ‘to rehabilitate the
declarant’s credibility as a witness when attacked on another
ground.’ ” Id. (quoting M.R.E. 801(d)(1)(B)(ii)). The party that
attempts to admit the prior consistent statement into evi-
dence bears the burden of proving that it is admissible. Id.
C. Analysis
The Government argues that it met the requirements laid
out in M.R.E. 801(d)(1)(B) and Finch such that the substan-
tive part of the interview was admissible as a prior consistent
statement. See also Finch, 79 M.J. at 394–95 (citing M.R.E.
801(d)(1)(B)). Appellant concedes that EN testified and was
subject to cross-examination at the court-martial, the inter-
view was offered to rehabilitate EN’s credibility because the
defense attacked it, and the interview was consistent with
EN’s statement at least in part. Nevertheless, Appellant con-
tinues to object to the admission of the interview on two pri-
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United States v. Norwood, No. 20-0006/NA
Opinion of the Court
mary bases. We agree with the Government and find Appel-
lant’s arguments opposing the admission of the interview un-
persuasive.
First, Appellant contends that both the military judge and
the CCA erred regarding the defense’s attack of EN’s credibil-
ity: according to Appellant, the accusation was not that the
prosecution had coached her to provide incriminating testi-
mony against Appellant, but instead that she had made up
the allegations from the beginning. However, the military
judge found as a fact that the ground on which the defense
attacked EN’s credibility was that her testimony as a witness
was coached by the Government. The military judge’s finding
of fact is not clearly erroneous. Defense counsel asked EN
“[h]ow many times” she spoke with the prosecutors and
whether they told her to “ ‘[j]ust tell the truth.’ ” They also
questioned EN about whether she “ever before had to practice
to tell the truth or is this like the first time?” Finally, they
inquired as to whether EN only remembered an event when
she was “practicing [her] testimony.” Based on these state-
ments, the military judge could infer that defense counsel was
relying on the “suggestive force of questions . . . to carry the
message” that EN’s testimony was coached by the Govern-
ment. 4 Christopher B. Mueller & Laird C. Kirkpatrick, Fed-
eral Evidence § 8:39, at 341 (4th ed. 2013). Consequently, even
if Appellant is correct that the defense also tried to undermine
EN’s credibility by contending that she had fabricated the al-
legations herself, the military judge’s decision—to admit the
interview as a response to the argument that she was
coached—was within the range of choices reasonably arising
from the facts and law. See United States v. Campo Flores,
945 F.3d 687, 705–06 (2d Cir. 2019).
The framing of the attack also leads to the issue of the
prong of M.R.E. 801(d)(1)(B) under which the interview could
be admitted. The CCA determined that the military judge
erred when he concluded the interview was admissible under
M.R.E. 801(d)(1)(B)(ii) because the impeachment constituted
an attack on another ground, when he should have deter-
mined that the interview was admissible under M.R.E.
801(d)(1)(B)(i) because the attack amounted to a charge of a
recent fabrication or recent improper influence. Norwood, 79
M.J. at 656. Even if it were true that the military judge erred,
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Opinion of the Court
there could not be prejudice when the interview still was ad-
missible. See United States v. Bess, 80 M.J. 1, 12 (C.A.A.F.
2020) (explaining that we affirm a military judge’s ruling
when “ ‘the military judge reached the correct result, albeit
for the wrong reason’ ” (quoting United States v. Robinson, 58
M.J. 429, 433 (C.A.A.F. 2003))).
Second, Appellant complains that the majority of the in-
terview was irrelevant to the Government’s goal of rehabili-
tating EN as a witness and inconsistent with EN’s testimony,
rendering the interview inadmissible. Neither of these argu-
ments is persuasive. As explained above, the Government of-
fered the interview into evidence as a prior consistent state-
ment in order to rebut the defense’s attack that the
Government had coached EN’s testimony. The coaching claim
was an attack on EN’s entire testimony at trial regarding the
alleged sexual assault, not to specific portions of her testi-
mony. As a result, the entire substantive portion of EN’s fo-
rensic interview, containing her full version of the events and
given before she met with the Government (and thus prior to
the point that any coaching would be possible), was admissi-
ble as a prior consistent account of the sexual assault. Addi-
tionally, the only inconsistencies that Appellant points to are
two details from EN’s testimony she did not mention during
the interview: that Appellant apologized to her for the inci-
dent and the rest of the trip was awkward. The prior state-
ment “ ‘need not be identical in every detail to the declarant’s
. . . testimony at trial’ ” for it to be “ ‘consistent’ ” under M.R.E.
801(d)(1)(B). Finch, 79 M.J. at 395 (alteration in original)
(quoting United States v. Vest, 842 F.2d 1319, 1329 (1st Cir.
1988)). Accordingly, these two small additions do not change
the fact that the interview was “ ‘for the most part consistent’
and in particular, . . . ‘consistent with respect to . . . fact[s] of
central importance to the trial.’ ” Id. (alterations in original)
(quoting Vest, 842 F.2d at 1329). Therefore, the interview was
admissible as a prior consistent statement.
III. Improper Argument
A. Facts
The second issue is whether the trial counsel committed
prosecutorial misconduct during the court-martial by making
improper arguments that prejudiced Appellant.
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Opinion of the Court
The trial counsel and assistant trial counsel, Lieutenant
C.B. and Lieutenant Commander B.K., made numerous argu-
ments that were, at best, impassioned.
During the court-martial, Lieutenant C.B. and Lieutenant
Commander B.K. seemed to personally vouch for EN’s credi-
bility in both the opening and closing arguments by referring
to her as an “innocent” child who had no reason to lie, claim-
ing that she was telling the truth, and asserting that her fam-
ily believed her. The defense objected to the comments about
EN’s family, and while the military judge overruled the objec-
tion, he did issue a curative instruction explaining that it was
up to the members to evaluate the witnesses’ credibility and
testimony. Later, in the rebuttal closing argument, Lieuten-
ant Commander B.K. repeatedly called Appellant a “child mo-
lester,” going so far as to assert that “by saying that there are
reasonable doubts in this case, defense is asking you to give
child molesters a license to commit these crimes, because if
you can’t find [Appellant] guilty . . . the only way . . . a child
molester could ever be convicted [is] if he is literally caught in
the act.” The defense did not object to those remarks and the
military judge took no action.
Finally, Lieutenant C.B. continued this style of argument
in the sentencing proceedings. During the Government’s sen-
tencing argument, she asserted that the defense would re-
quest a lenient sentence and, clearly opposing that notion,
asked the members to consider what would happen “when you
all return to your normal duties . . . . [A]nd someone asks you
. . . . ‘Wow, what did [Appellant] get for that?’ Do you really
want your answer to be ‘nothing at all’?” Again, the defense
did not object to this language and the military judge did not
act upon it sua sponte.
Appellant raised numerous improper argument claims on
appeal, but the CCA rejected most of them. Norwood, 79 M.J.
at 662–67. However, the lower court did agree with Appellant
that Lieutenant Commander B.K. made improper sentencing
arguments by accusing the defense of requesting that the
members give child molesters a “license” to commit this kind
of crime and claiming that EN’s family only declined to coop-
erate with the defense because they believed EN was telling
the truth. Id. at 663–64. While the court said these arguments
were improper and the military judge should have sustained
8
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Opinion of the Court
Appellant’s objection to the latter and given a stronger cura-
tive instruction, it nonetheless concluded that the misconduct
was “isolated and brief,” the military judge’s instruction that
the members were to determine the witnesses’ credibility
themselves was at least somewhat curative, and the errors
did not prejudice Appellant. Id. at 663–65.
B. Law
A prosecutor proffers an improper argument amounting to
prosecutorial misconduct when the argument “ ‘overstep[s]
the bounds of that propriety and fairness which should char-
acterize the conduct of such an officer in the prosecution of a
criminal offense.’ ” United States v. Fletcher, 62 M.J. 175, 178
(C.A.A.F. 2005) (alteration in original) (quoting Berger v.
United States, 295 U.S. 78, 84 (1935)).
When the accused objects to an improper argument during
his court-martial, we review the issue de novo. United States
v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019). In that de novo re-
view, we determine whether any error materially prejudiced
the appellant’s substantial rights under Article 59, UCMJ, 10
U.S.C. § 859; Fletcher, 62 M.J. at 179. “We weigh three factors
to determine whether trial counsel’s improper arguments
were prejudicial: (1) the severity of the misconduct, (2) the
measures adopted to cure the misconduct, and (3) the weight
of the evidence supporting the conviction.” Voorhees, 79 M.J.
at 12 (internal quotation marks omitted) (citation omitted).
When a trial counsel makes an improper argument during
findings, “reversal is warranted only when the trial counsel’s
comments taken as a whole were so damaging that we cannot
be confident that the members convicted the appellant on the
basis of the evidence alone.” United States v. Andrews, 77
M.J. 393, 401–02 (C.A.A.F. 2018) (internal quotation marks
omitted) (citation omitted).
On the other hand, if the accused failed to object on this
basis during the court-martial, we review the matter for plain
error. Id. at 398. To prove plain error resulted from the trial
counsel’s improper argument during the sentencing proceed-
ing, Appellant has the burden of establishing “(1) there was
error; (2) it was plain or obvious; and (3) the error materially
prejudiced a substantial right.” United States v. Marsh, 70
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Opinion of the Court
M.J. 101, 104 (C.A.A.F. 2011) (internal quotation marks omit-
ted) (citations omitted).
In this context, material prejudice to the sub-
stantial rights of the accused occurs when an error
creates “an unfair prejudicial impact on the [court
members’] deliberations.” [United States v.] Knapp,
73 M.J. [33,] 37 [C.A.A.F. 2014] ([first] alteration in
original) (internal quotation marks omitted) (cita-
tion omitted). In other words, the appellant “must
show a reasonable probability that, but for the error,
the outcome of the proceeding would have been dif-
ferent.” Molina-Martinez v. United States, 136 S. Ct.
1338, 1343, 194 L. Ed. 2d 444 (2016) (internal quo-
tation marks omitted) (citation omitted).
United States v. Lopez, 76 M.J. 151, 154 (C.A.A.F. 2017).
C. Analysis
As an initial matter, two of the alleged improper argu-
ments clearly do not merit relief. First, we reject Appellant’s
claim that trial counsel personally attacked him by referring
to him as a “child molester.” A child molester is “[s]omeone
who interferes with, pesters, or persecutes a child in a sexual
way, esp. when touching is involved.” Black’s Law Dictionary
302 (11th ed. 2019) (entry for “child molester”). Given that
Appellant was prosecuted for and convicted of a sexual offense
against a child, we agree with the Government that this lan-
guage actually was a permissible characterization supported
by the charge and the evidence. See, e.g., Voorhees, 79 M.J. at
11 (noting that a trial counsel’s “word choice” can be improper
argument when it is a “personal attack on the defendant” but
not when it is a “commentary on the evidence” (internal quo-
tation marks omitted) (citation omitted)); see also United
States v. Bentley, 561 F.3d 803, 811 (8th Cir. 2009) (deciding
that when there was “strong” evidence that the appellant had
“committed sexual offenses against young girls,” then “[t]he
government’s description of [the appellant] as a sexual pred-
ator was not plain error”). Second, it is true that the military
judge erred in overruling defense counsel’s objection to the
one supposedly improper argument to which Appellant ob-
jected during the court-martial: that EN’s family believed
that she was telling the truth about this matter. But while
this claim was irrelevant and inappropriate, it did not
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Opinion of the Court
amount to severe misconduct, particularly because no one
would expect her family not to believe her and it only made
up a few lines of rebuttal argument. Cf. Voorhees, 79 M.J. at
12 (noting that “trial counsel’s improper argument was se-
vere” when “[t]he misconduct was sustained throughout ar-
gument and rebuttal, occurring with alarming frequency”).
Also, the defense immediately objected to the argument and,
although the military judge overruled the objection, he issued
a curative instruction explaining that the members alone are
to judge witnesses’ credibility. “ ‘We presume, absent contrary
indications, that the panel followed the military judge’s in-
structions . . . .’ ” United States v. Short, 77 M.J. 148, 151
(C.A.A.F. 2018) (quoting United States v. Sewell, 76 M.J. 14,
19 (C.A.A.F. 2017)). Accordingly, Appellant was not preju-
diced by these arguments.
Although Appellant did not object to the other improper
arguments when the trial counsel made them, those argu-
ments were more problematic.
Lieutenant C.B. and Lieutenant B.K. clearly committed
misconduct during findings by repeatedly vouching for EN, a
method of argument that we have explicitly prohibited. Voor-
hees, 79 M.J. at 11–12; Fletcher, 62 M.J. at 180. Trial counsel
“are military officers and should conduct themselves accord-
ingly,” a standard that these trial counsel failed to meet un-
der our precedent regarding improper argument. Voorhees, 79
M.J. at 14. However, while those improper arguments consti-
tuted obvious error, there was no material prejudice to Appel-
lant during findings. EN testified credibly that Appellant sex-
ually abused her and, despite strenuous efforts to undermine
her credibility, the defense failed to offer a plausible reason
as to why EN would have fabricated these allegations. There-
fore, Appellant cannot show a reasonable probability that he
would not have been convicted in the absence of these im-
proper arguments. See Molina-Martinez, 136 S. Ct. at 143.
Instead, the prejudice arises from the sentencing proceed-
ing. In the sentencing argument, Lieutenant C.B. pressured
the members to consider how their fellow servicemembers
would judge them and the sentence they adjudged instead of
the evidence at hand. This Court has repeatedly held that “a
court-martial must reach a decision based only on the facts in
evidence.” Fletcher, 62 M.J. at 183 (citing United States v.
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Bouie, 9 C.M.A. 228, 233, 26 C.M.R. 8, 13 (1958)). Arguing an
inflammatory hypothetical scenario with no basis in evidence
amounts to improper argument that we have repeatedly, and
quite recently, condemned. See Voorhees, 79 M.J. at 14–15.
Furthermore, neither the defense counsel nor the military
judge took action to address the issue themselves. The de-
fense counsel could have done more to meet their “duty to
the[ir] client[s] to object to improper arguments early and of-
ten,” as could have the military judge to fulfill his “sua sponte
duty to [e]nsure that an accused receives a fair trial” but be-
cause they did not, there was a total lack of curative measures
to redress this misconduct. Id. at 14–15 (alterations in origi-
nal) (internal quotation marks omitted) (citations omitted).2
In addition to meeting the first two prongs of the plain er-
ror test by showing that the improper argument amounted to
error that was plain or obvious, Appellant also has met his
burden to show a reasonable probability that there would
have been a different outcome to the sentencing proceeding
had this improper argument not occurred. See Marsh, 70 M.J.
at 107. As our predecessor court said, “[t]rial counsel may
properly ask for a severe sentence, but [they] cannot threaten
the court members with the specter of contempt or ostracism
if they reject [their] request.” United States v. Wood, 40
C.M.R. 3, 9 (C.M.A. 1969). Lieutenant C.B. demanded the
members impose a sentence of a dishonorable discharge, con-
finement for four years, and reduction to E-1, while Appel-
lant’s counsel implored the members to limit the sentence to
confinement for one year. Under the circumstances, we con-
clude that Appellant established that the trial counsel’s egre-
gious attempt to pressure the members resulted in a reason-
able probability that the sentence adjudged was greater than
it would have been otherwise. Because “we cannot be confi-
dent that [Appellant] was sentenced on the basis of the evi-
dence alone,” Lieutenant C.B.’s improper sentencing argu-
ment caused material prejudice to Appellant such that he is
2 We do note, however, that Appellant raised an ineffective as-
sistance of counsel claim before the CCA based on the defense coun-
sel’s failure to object to the improper argument, but the court de-
cided that relief was not warrented because it had determined that
the “arguments were either not improper, or if they were, they were
not prejudicial to [Appellant].” Norwood, 79 M.J. at 666.
12
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Opinion of the Court
entitled to relief. Marsh, 70 M.J. at 107 (internal quotation
marks omitted) (citation omitted).
Judgment
The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed as to findings, but is
reversed as to the sentence. The sentence is set aside and the
record is returned to the Judge Advocate General of the Navy.
A sentencing rehearing is authorized.
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United States v. Norwood, No. 20-0006
Judge OHLSON, concurring in the result.
I write separately in order to discuss certain important as-
pects of this case as they relate to the provisions of Military
Rule of Evidence (M.R.E.) 801(d)(1)(B), and to sound a note of
caution to the field about the applicability of this decision to
future cases.
To begin with, I believe the majority is remiss in not
squarely acknowledging that the military judge was wrong in
applying the provisions of M.R.E. 801(d)(1)(B)(ii) to a key
facet of this case. Specifically, the military judge ruled that
because defense counsel had implied that the victim’s in-court
testimony was the product of improper prosecutorial coach-
ing, M.R.E. 801(d)(1)(B)(ii) applied to the question of whether
a videotape of the victim’s prior statement to forensic investi-
gators was admissible at trial. As demonstrated below, the
military judge was clearly mistaken about the applicability of
this particular provision, and the majority should affirma-
tively concede this point.
M.R.E. 801(d)(1)(B)(i) provides, in pertinent part, that a
prior statement is not hearsay if it is consistent with the wit-
ness’s in-court testimony and is offered “to rebut an express
or implied charge that the declarant recently fabricated it or
acted from a recent improper influence.” (Emphasis added).
On the other hand, M.R.E. 801(d)(1)(B)(ii), which was the sub-
part cited by the military judge, provides that a prior state-
ment is not hearsay if it is consistent with the witness’s in-
court testimony and is offered to rehabilitate the declarant’s
credibility as a witness “when attacked on another ground.”
(Emphasis added).
Here, the military judge concluded that the defense coun-
sel had implied that the victim’s in-court testimony was the
product of improper prosecutorial coaching but then stated
that prosecutorial coaching is an attack on another “ground.”
However, as we emphasized in United States v. Finch, the ref-
erence in M.R.E. 801(d)(1)(B)(ii) to “another ground” means a
ground other than a ground listed in M.R.E. 801(d)(1)(B)(i).
79 M.J. 389, 395–96 (C.A.A.F. 2020). A charge of prosecutorial
coaching falls under the grounds listed in M.R.E.
United States v. Norwood, No. 20-0006/NA
Judge OHLSON, concurring in the result
801(d)(1)(B)(i). Thus, the proper basis for analyzing the ad-
missibility of the victim’s videotaped statement was M.R.E.
801(d)(1)(B)(i) rather than M.R.E. 801(d)(1)(B)(ii).
This is not an inconsequential point. As the United States
Navy-Marine Corps Court of Criminal Appeals (CCA) as-
tutely observed in this case:
This distinction is important because rebutting a
challenge of recent fabrication [under M.R.E.
801(d)(1)(B)(i)] logically permits a more expansive
use of prior statements to show that nothing sub-
stantial has changed in the declarant’s testimony.
On the other hand, rehabilitating the credibility of
the declarant [under M.R.E. 801(d)(1)(B)(ii)] may re-
quire something more precisely related to explaining
or rebutting the specific manner of the attack on the
witness’[s] credibility.
United States v. Norwood, 79 M.J. 644, 655 (N-M. Ct. Crim.
App. 2019) (citations omitted).
Next, I diverge from the majority’s apparent viewpoint
that the military judge’s admission of the entire substantive
portion of the interview—rather than discrete sections of that
interview—was an appropriate default position. Specifically,
I believe it is a close question whether the military judge
abused his discretion in deciding that, in the course of ques-
tioning the victim, the defense counsel had flung open the
door so wide that the Government could walk through it with
the entire substantive portion of the victim’s videotaped
statement. My concerns are as follows.
Consistent with our recent unanimous decision in Finch,
when ruling on an M.R.E. 801(d)(1)(B) issue such as this one,
a military judge may admit at trial only those portions of a
prior statement that are consistent with a witness’s in-court
testimony and that are relevant to the express purpose of re-
butting the allegation of a recent improper influence. Finch,
79 M.J. at 396. Thus, if just a segment of a prior statement
can adequately rebut an allegation that a witness was af-
fected by a recent improper influence, then only that segment
may be admitted at trial.
2
United States v. Norwood, No. 20-0006/NA
Judge OHLSON, concurring in the result
In those instances where a defense counsel alludes to a
purported inconsistency between a witness’s in-court testi-
mony and a prior statement, the task of identifying the ad-
missible portion or portions of that prior statement is rela-
tively easy. If a witness said “x” at trial, the military judge
should admit only those portions of the prior statement where
the witness similarly said “x” in the prior statement.1 How-
ever, where, as here, a defense counsel alludes to a purported
omission (i.e., the witness said “x” during in-court testimony
but did not mention “x” in the prior statement), the situation
is far more tricky. Simply stated, there is no specific “x” to be
found in the proverbial haystack that would directly rebut the
defense allegation that this omission was reflective of a recent
improper influence. Therefore, in such a scenario it is incum-
bent upon this Court to grant a military judge considerable
leeway in deciding just how much of the witness’s prior con-
sistent statement needs to be admitted to demonstrate to the
panel members that the omission was the product of, say, a
simple oversight on the part of the witness or the failure of an
interviewer to ask the witness a question that was reasonably
likely to elicit a relevant response. For these reasons, the mil-
itary judge did not abuse his discretion in deciding to admit
the entire substantive portion of the victim’s prior state-
ment—although it is near the tipping point. However, I am
not as confident as the majority appears to be that the mili-
tary judge handled this issue in an exemplary manner for the
following four reasons.
First, the record suggests that the military judge did not
adequately consider whether the videotaped segment played
for the panel members could have been significantly pared
back while still achieving the Government’s legitimate goal of
rebutting the defense counsel’s contention that there had
been improper prosecutorial coaching. Specifically, in ad-
dressing the victim’s omission from her videotaped statement
1 For this reason, to the extent the Government argues that the
prior videotaped statement was also admissible under the provi-
sions of M.R.E. 801(d)(1)(B)(ii), because defense counsel addition-
ally sought to impeach the victim based on a few alleged inconsist-
encies in her in-court testimony, this approach does not justify the
military judge’s decision to admit the entire substantive portion of
the video.
3
United States v. Norwood, No. 20-0006/NA
Judge OHLSON, concurring in the result
that after the sexual abuse incident the rest of her vacation
stay with Appellant was “awkward,” I believe the military
judge erred by failing to admit at trial only those portions of
the victim’s prior statement that dealt with the victim and
Appellant’s interactions after the sexual abuse—and not the
sexual abuse itself. However, I hesitantly conclude that this
misstep did not rise to the level of an abuse of discretion.
Second, military judges must place the burden on the mov-
ing party—here, the Government—both to identify the con-
sistent portions of the prior statement and to demonstrate the
relevancy of those portions to the stated aim of rebutting the
aspersions cast on a witness’s credibility. Finch, 79 M.J. at
396. Here, by admitting the entire substantive portion of the
videotape without adequately putting the prosecution
through these required steps the military judge allowed into
evidence some inconsistent statements made by the victim
and some other statements that were not directly relevant to
rebutting the specific omissions raised by the defense counsel.
Third, the majority minimizes the harmful effect of admit-
ting the entire substantive portion of the victim’s videotaped
statement by noting that the inconsistent portions repre-
sented merely “two small additions” to the victim’s testimony.
Respectfully, this misses an important point. As the Drafters’
Analysis of M.R.E. 801(d)(1)(B) makes clear, beyond prevent-
ing the introduction of evidence that was not adduced at trial,
a fundamental evil to be avoided in situations such as this one
is the “impermissible bolstering” of the witness. Manual for
Courts-Martial, United States, Analysis of the Military Rules
of Evidence app. 22 at A22-61 (2016 ed.); Finch, 79 M.J. at
396. In the minds of triers of fact, repetition can be confused
with reliability. Therefore, the very act of admitting the entire
substantive portion of the videotape carried the risk of preju-
dicing Appellant, and that is precisely why the strictures on
hearsay, and the hurdles imposed by M.R.E. 801(d)(1)(B),
must be strictly observed.
Fourth and finally, on redirect examination the trial coun-
sel in this case had the following exchange with the victim:
Q: . . . I just want to follow up on some of defense
counsel’s questions. Defense counsel asked you a lot
of questions about meeting with us. What is the one
4
United States v. Norwood, No. 20-0006/NA
Judge OHLSON, concurring in the result
thing, the only thing, that we told you you [sic] abso-
lutely had to say in this courtroom?
A: To tell the truth.
Q: Defense counsel also said that you didn’t— he im-
plied that you hadn’t told the forensic interviewer
about the rest of the trip in Hawaii and how it was
awkward. That’s correct isn’t it?
A: Yes.
Q: Isn’t it also true that the forensic interviewer
didn’t ask you what the rest of the trip was like?
A: Yes.
In my view, the military judge should have more fully con-
sidered whether this exchange between the trial counsel and
the victim—standing alone—was sufficient to rebut the de-
fense counsel’s allegation that the witness’s in-court testi-
mony was the product of improper prosecutorial coaching. In-
deed, I believe this point should have been factored into the
military judge’s M.R.E. 403 balancing test in deciding
whether the probative value of introducing the entire prior
consistent statement was substantially outweighed by the
risk of creating unfair prejudice (through repetition of the al-
legations), causing undue delay, wasting time, and presenting
cumulative evidence.
For these reasons, unlike the majority I believe that the
issue presented in this case is a very close question. Even
though we now hold that the military judge’s decision to ad-
mit the entire substantive portion of the videotaped state-
ment did not rise to the level of an abuse of discretion, I do
not believe this case should be seen as an exemplar of how
military judges should approach these types of issues in the
future. Generally speaking, a military judge’s decision to ad-
mit a prior consistent statement in its entirety is fraught with
peril. See Finch, 79 M.J. at 398. Indeed, such a step may re-
sult in prejudice to an accused of such a magnitude that it
merits reversal of a conviction. Therefore, in regard to Issue
I, although I ultimately agree with the majority that the mil-
itary judge did not abuse his discretion in admitting the entire
substantive portion of the videotape, I believe it is prudent to
sound a note of caution to the field about the applicability of
this decision to future cases with different facts.
5
United States v. Norwood, No. 20-0006/NA
Judge OHLSON, concurring in the result
In regard to Issue II, I agree with the majority that Appel-
lant’s sentence should be set aside with a sentence rehearing
authorized.
6
United States v. Norwood, No. 20-0006/NA
Judge SPARKS, concurring in part and dissenting in
part and in the result.
I concur with the majority’s conclusion that the recorded
interview was properly admissible as a prior consistent
statement under Military Rule of Evidence (M.R.E.)
801(d)(1)(B)(i). However, I cannot join the majority’s
resolution of the improper argument on sentencing. In my
view, Appellant has not carried his burden under the plain
error standard to show that, based on trial counsel’s
argument regarding what the members’ coworkers might
think, a reasonable probability exists that the sentence
adjudged was greater than it would have been otherwise.
The majority relies solely upon the sentences requested by
the parties as evidence of prejudice. The Government argued
for a sentence of four years of confinement, reduction to the
grade of E-1, and a dishonorable discharge while the defense
argued for no more than one year of confinement and no
punitive discharge. However, this rationale ignores the
sentence that the members actually adjudged. Appellant was
sentenced to eighteen months of confinement, a reduction to
the grade of E-1, and a dishonorable discharge. The term of
adjudged confinement is closer to what the defense requested
than what the Government requested of the members.
Further, it is unrealistic, under the facts and
circumstances of this case, to conclude that Appellant would
not have been adjudged a dishonorable discharge. The fifteen-
year-old victim testified on the merits and gave an in-person
unsworn statement at sentencing. During the Government’s
case on the merits, the members heard, and apparently found
credible, the victim’s detailed description of Appellant’s
conduct against her. On sentencing, the victim described how
Appellant’s offense against her had left her severely
emotionally and mentally affected.
Finally, we should take into account that defense counsel
did not object to the trial counsel’s sentencing argument.
Defense counsel in this case was best situated to determine
which parts of trial counsel’s argument were worth objecting
to and which were not. The majority has already pointed out
that earlier in the court-martial defense counsel seemed
skilled enough to recognize when and on what basis an
United States v. Norwood, No. 20-0006/NA
Judge SPARKS, dissenting
objection should be lodged. In the absence of an
ineffectiveness claim before this Court, defense counsel’s
failure to object here raises the possibility that, from defense
counsel’s perspective, trial counsel’s inappropriate comments
may have had less of an effect on the members than the
majority believes.
My concern is that concluding under plain error that there
was prejudice in a case such as this one suggests this Court’s
lack of confidence in the skills and abilities of military defense
lawyers to try their own cases. I certainly agree with the
majority that trial counsel’s statements were otherwise plain
and obvious error. I also agree with the majority’s admonition
to defense counsel and military judges generally. However, I
am simply not convinced that Appellant met his burden to
show material prejudice to his substantial rights. It might
have been a different matter had counsel objected and been
overruled without a curative instruction to the members.
Since that is not the case here, I must respectfully dissent.
2