UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          SCHENCK, ZOLPER, and WALBURN
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                      Private E1 DEMETRIUS R. CRUDUP
                         United States Army, Appellant

                                  ARMY 20050112

                Headquarters, 7th Infantry Division and Fort Carson
                        Donna M. Wright, Military Judge
                  Colonel Kent R. Meyer, Staff Judge Advocate

For Appellant: Captain Seth A. Director, JA (argued); Lieutenant Colonel Kirsten
V.C. Brunson, JA; Major Charles A. Kuhfahl, Jr., JA; Captain Seth A. Director, JA
(on brief); Colonel John T. Phelps II, JA; Lieutenant Colonel Steven C. Henricks,
JA; Major Fansu Ku, JA; Captain Seth A. Director, JA (on supplemental brief).

For Appellee: Captain Phillip M. Staten, JA (argued); Colonel John W. Miller II,
JA; Lieutenant Colonel Michele B. Shields, JA; Major Tami L. Dillahunt, JA;
Captain Philip M. Staten, JA (on brief).

                                   18 January 2008
                              ---------------------------------
                               OPINION OF THE COURT
                              ---------------------------------

ZOLPER, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of resisting apprehension and making a false official
statement, in violation of Articles 95 and 107, 10 U.S.C. §§ 895 and 907 [hereinafter
UCMJ]. Contrary to his pleas, the military judge also found appellant guilty of
signing a false official record and assault consummated by battery (three
specifications), in violation of Articles 107 and 128, UCMJ. The convening
authority approved the adjudged sentence to three years confinement and a bad-
conduct discharge and directed appellant receive ninety-six days pretrial
confinement credit against the sentence to confinement. This case is before the
court for review pursuant to Article 66, UCMJ.
CRUDUP – ARMY 20050112

       Appellant alleges two assignments of error, one of which merits discussion,
but no relief. 1 Appellant asserts the military judge erred in allowing out-of-court
statements from Porche Crudup, appellant’s wife and victim, regarding appellant’s
28 August 2004 assaults on her and their infant son (Specifications 1 and 4,
Charge I). Appellant’s wife did not testify and defense counsel made a timely
objection that admission of her statements failed to meet the requirements set forth
in Crawford v. Washington, 541 U.S. 36 (2004). We agree with appellant, but find
the military judge’s erroneous admission of these statements harmless beyond a
reasonable doubt.

                                       FACTS

      On 28 August 2004, Military Police (MP) Officer Sergeant (SGT) Vasquez
was called to investigate allegations by one of appellant’s neighbors, Mrs. F, of a
domestic disturbance near appellant’s government quarters on Fort Carson,
Colorado. Mrs. F testified she heard “a lot of yelling and screaming” and saw
Porche Crudup backing away in a defensive posture from appellant.

       Upon arriving at the scene, SGT Vasquez saw appellant sitting outside. When
SGT Vasquez got out of the MP vehicle, appellant approached SGT Vasquez, and
said he had an altercation with his wife and he was the person for whom
SGT Vasquez was looking. Sergeant Vasquez, with appellant’s consent, entered
appellant’s quarters. Inside, appellant completed a data sheet and SGT Vasquez’s
MP partner soon arrived. When SGT Vasquez asked where appellant’s wife was,
appellant said she was at a neighbor’s house down the street.

       Approximately fifteen to twenty minutes after arrival at the scene, SGT
Vasquez proceeded to the neighbor’s house four doors down where he found
appellant’s wife with a bruised and swollen face. She appeared to have been crying,
was clearly upset, and told SGT Vasquez appellant pushed her to the ground while
she was holding their infant son, punched and kicked her, and also kicked their son
in the face.

1
  We disagree with appellant’s assertion that his plea of guilty to resisting
apprehension is improvident based upon his statement to the military judge that he
believed he was already apprehended when he ran from the military police. Even if
we agreed with appellant, under the facts of this case, appellant was provident to the
closely-related offense of breaking arrest under Article 95, UCMJ. See United
States v. Epps, 25 M.J. 319, 323 (C.M.A. 1987) (affirming guilty plea to larceny
because the providence inquiry established guilt to the closely-related offense of
receiving stolen property). See also United States v. Hubbard, 28 M.J. 203, 205-06
(C.M.A. 1989); United States v. Felty, 12 M.J. 438, 442 (C.M.A. 1982); United
States v. Gonzalez, 60 M.J. 572 (Army Ct. Crim. App. 2004); United States v. Green,
58 M.J. 855 (Army Ct. Crim. App. 2003); United States v. Rhodes, 47 M.J. 790, 791
(Army Ct. Crim. App. 1998).
                                           2
CRUDUP – ARMY 20050112

       Furthermore, SPC F (appellant’s neighbor and Mrs. F’s husband) testified that
he looked out his window and saw appellant standing over Porche Crudup, who was
defensively curled up in a ball. He then saw appellant kick Porche and could see the
couple’s infant son in her arms. Another neighbor, SGT L, also testified that she
saw appellant push Porche to the ground while she held the infant, and then observed
appellant kick her and drag her by the hair across the lawn. Sergeant L also saw
appellant hit the infant during the altercation. Later that day Mrs. F saw Porche with
bruises on her back, and marks on her arms and face. Porche also showed Mrs. F
marks on the infant’s face. Later in the week, SPC F saw Porche, who still had
bruised and puffy eyes.

       Appellant later signed a sworn statement admitting to grabbing and pushing
his wife onto the floor of their quarters. He also admitted that after she punched him
in the head, he went after her ― pushing her into the grass and kicking her.
Appellant stated his wife was not holding their infant son when he pushed her onto
the grass.

       The defense, in addition to entering Porche Crudup’s previous state
convictions for offenses related to fraud, adopted Ms. R, a government witness, as
its own. Ms. R, a friend of both appellant and Porche, testified she saw Porche trip
and fall while holding the couple’s infant son and walking backwards away from
appellant. Although she saw appellant attempt to kick Porche, she did not actually
see him kick either Porche or the infant. Ms. R testified she took the infant from
Porche after the fall because she was afraid that appellant and Porche might get into
an altercation. She then went into the house to get her brother. She admitted that
she did not know whether appellant hit Porche while she was gone.

                                   DISCUSSION

       We review de novo whether a military judge admitted evidence in violation of
the Sixth Amendment. United States v. Williamson, 65 M.J. 706, 715 (Army Ct.
Crim. App. 2007). If we determine the military judge admitted evidence in
violation of the Sixth Amendment, we must also determine whether the error was
harmless beyond a reasonable doubt. United States v. Othuru, 65 MJ 375 (C.A.A.F.
2007); United States v. Diamond,    MJ    , 2007 CCA LEXIS 566 (Army Ct. Crim.
App. 21 Dec. 2007); Williamson, 65 M.J. at 715.

       In Crawford v. Washington, 541 U.S at 53-54, the Supreme Court ruled “the
confrontation clause forbids the admission of testimonial statements of a witness
who did not appear at trial unless he was unavailable to testify, and the defendant
had a prior opportunity for cross-examination.” In Davis v. Washington, 547 U.S.
813,    ; 126 S. Ct. 2266, 2274 (2006), the Court clarified that Crawford applies
only to testimonial hearsay. As the Davis Court explained:



                                          3
CRUDUP – ARMY 20050112

             A critical portion of this holding, and the portion central
             to resolution of the two cases now before us, is the phrase
             “testimonial statements.” Only statements of this sort
             cause the declarant to be a “witness” within the meaning
             of the Confrontation Clause. See [Crawford, 541 U.S. at
             51]. It is the testimonial character of the statement that
             separates it from other hearsay that, while subject to
             traditional limitations upon hearsay evidence, is not
             subject to the Confrontation Clause.

Id. at   , 126 S. Ct. at 2273.

       In determining whether statements are testimonial we must look to “the
circumstances and context in which out-of-court statements are generated, and
whether the out-of-court statements were made under circumstances that would lead
an objective witness reasonably to believe the statement[s] would be available for
use at a later trial by the government.” United States v. Magyari, 63 M.J. 123, 126
(C.A.A.F. 2006) (citing Crawford, 541 U.S. at 52). Moreover, our superior court
has instructed that we consider whether each statement: 1) was “in response to a law
enforcement or prosecutorial inquiry”; 2) involved “more than a routine and
objective cataloging of unambiguous factual matters”; and 3) was made primarily to
produce “evidence with an eye toward trial[.]” United States v. Rankin, 64 M.J. 348,
352 (C.A.A.F. 2007). As our court recently explained:

             The last of the Rankin Court’s factors requires military
             courts to conduct a “contextual analysis” to determine
             “whether the primary purpose of the document [or
             statement] was prosecutorial in nature.” [United States v.]
             Foerster, 65 M.J. [120,] 124. “[O]ur 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.] Gardinier, 65 M.J. 60, 65 (C.A.A.F. 2007).

Williamson, 65 M.J. at 716-17 (second, third, and fifth alterations added).

       We find Porche Crudup’s statements to SGT Vasquez were testimonial and
were admitted in violation of the requirements set forth in Crawford. Under facts
analogous to appellant’s case, the Davis Court held that a victim’s statement to a
police officer after the officer arrived at the house in response to a domestic
violence report was testimonial. In addition to being statements to law
enforcement personnel, the statements here involved “more than a routine and
objective cataloging of unambiguous factual matters.” Rankin, 64 M.J. at 352.
Moreover, the primary purpose of the police questioning was not to enable the
officer to assess the situation and to meet the needs of the victim, but was clearly
                                           4
CRUDUP – ARMY 20050112

with an “eye toward trial[.]” Id. The MPs did not take Porche’s statements
immediately after arriving on the scene, but first spoke with appellant to obtain his
version of events. They did not take Porche’s statements until after she had already
left the scene and she diffused any immediate danger by taking refuge at a residence
separate from appellant.

       This, however, does not end our analysis. We must now determine whether
this error was harmless beyond a reasonable doubt. The record of trial in this case
contains overwhelming evidence supporting appellant’s convictions of assault.
Upon arriving at the scene in response to a complaint of domestic violence,
appellant admitted he had an altercation with his wife and he “was the one [they
were] looking for.” Moreover, the extent of Porche’s and her son’s injuries and the
testimony of two of appellant’s unbiased neighbors, SGT L and SPC F, describing
the assaults in great detail, contradict Ms. R’s account that Porche simply tripped
and fell. We are convinced, therefore, that the military judge’s error was harmless
beyond a reasonable doubt.

                                  CONCLUSION

      The findings of guilty and the sentence are affirmed.

      Senior Judge SCHENCK and Judge WALBURN concur.

                                              FOR
                                              FOR THE
                                                  THE COURT:
                                                      COURT:



                                              MALCOLM H.
                                              MALCOLM     H. SQUIRES,
                                                             SQUIRES, JR.
                                                                       JR.
                                              Clerk of
                                              Clerk of Court
                                                       Court




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