UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        CAMPANELLA, SALUSSOLIA, and FLEMING
                               Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                             Major ANTIWAN HENNING
                             United States Army, Appellant

                                      ARMY 20160572

        Headquarters, US Army Combined Arms Center & Fort Leavenworth
                      Charles L. Pritchard, Jr., Military Judge
                 Colonel John S. T. Irgens, Staff Judge Advocate


For Appellant: Zachary Spilman, Esquire (argued); Major Ryan T. Yoder, JA;
Zachary Spilman, Esquire (on brief); Captain Cody Cheek, JA; Zachary Spilman,
Esquire (on reply brief).

For Appellee: Captain Natanyah Ganz, JA (argued); Lieutenant Colonel Eric K.
Stafford, JA; Major Cormac M. Smith, JA; Captain Natanyah Ganz, JA (on brief).


                                        30 April 2018

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FLEMING, Judge

      In this case, we find the military judge’s balancing test under Military Rule of
Evidence (Mil. R. Evid.) 403 was clearly erroneous and substantially prejudiced
appellant.

       A military judge, sitting as a general court-martial, convicted appellant,
contrary to his pleas, of two specifications of sexual assault, in violation of Article
120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012) [hereinafter UCMJ].
The convening authority approved the adjudged sentence of a dismissal from the
service and confinement for thirteen years.
HENNING—ARMY 20160572

      We review this case under Article 66, UCMJ. 1 Appellant raises seven
assignments of error; because we find the military judge’s admission of government
deoxyribonucleic acid (DNA) evidence was prejudicial error, we need not address
the remaining assignments of error.

                                 BACKGROUND

      At appellant’s court-martial, the government proffered expert testimony and
evidence identifying appellant’s DNA in an extract from the victim’s underwear.
The military judge ruled the expert used an unreliable formula to determine
appellant’s DNA was in the victim’s underwear and granted a defense motion to
suppress. The government appealed the ruling pursuant to Article 62, UCMJ, 10
U.S.C. § 862 (2012). This court reversed the military judge; finding he made
several erroneous findings of fact and conclusions of law and abused his discretion.
United States v. Henning, No. ARMY MISC 20150410, 2015 CCA LEXIS 376, *11-
13 (Army. Ct. Crim. App. 3 Sep. 2015) (mem. op.).

       The Court of Appeals for the Armed Forces (CAAF) determined the military
judge’s findings of fact were not clearly erroneous, his conclusions of law were not
incorrect, and he properly applied the framework from Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993). United States v. Henning, 75 M.J. 187 (C.A.A.F.
2016). Accordingly, the CAAF reversed our decision and affirmed the ruling of the
military judge suppressing the evidence. Id. at 192.

       Appellant’s court-martial then proceeded. The government requested “a
clarification of the court’s suppression ruling” moving to admit alternative
testimony and evidence from the same DNA expert, who used the unreliable formula
regarding appellant, that the other two men present at the scene of the crime were
excluded as DNA contributors in the same extract from the victim’s underwear.
Defense counsel objected, among other grounds, under Mil. R. Evid. 403. The
military judge recognized admitting the DNA evidence excluding the other two men
was problematic under Mil. R. Evid. 403 stating:

             [t]he unfair prejudice in this case consists of leaving the
             impression in the factfinder’s mind that the accused was
             not excluded, that surely if they collected DNA evidence
             from everybody else, they collected evidence from him.
             Everything was tested, they excluded two other people and
             he was not excluded. That’s what impression they are left
1
 On 11 April 2018, this court heard oral argument on two issues: 1) whether the
military judge abused his discretion by admitting evidence that two other people
were excluded as possible contributors of DNA found in an extract of the victim’s
underwear; and 2) whether pulling underwear to the side is legally sufficient to
constitute a “touching” for the offense of sexual assault by causing bodily harm?


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HENNING—ARMY 20160572

             with logically. Then if that’s the case, the defense is left
             with a choice. Either they can say nothing at all and leave
             that impression in the factfinder’s mind or they can . . .
             introduce all of this scientific evidence that is unreliable .
             . . , the reason that the lab included [appellant] as a
             possible contributor, and then attempt to undermine their
             own evidence, the evidence that they then raise to say that
             he should have been excluded. That’s the only way that
             they get there. And so they are forced then to either
             choose silence and this inference that the panel shouldn’t
             be drawing or to introduce all this evidence that was
             suppressed.

       Even though the military judge expressed his concerns regarding unfair
prejudice and that the defense was “in a catch 22” position, 2 he ultimately admitted
the evidence excluding the other two men as DNA contributors ruling:

             [t]he DNA contributor exclusions of two males who were
             present in the house during the alleged offenses is relevant
             and highly probative on the issue of identification of the
             alleged perpetrator. However, the same evidence is highly
             prejudicial because of its tendency to draw the excluded
             evidence back into the court-martial. The logical and
             unspoken conclusion of the exclusion evidence is that the
             accused could not be excluded as a contributor to the DNA
             in the underwear. The defense then has two options: to
             leave that unspoken conclusion unrebutted by not delving
             into the [expert’s] DNA methodology and analysis or to
             resurrect that evidence, particularly that the accused’s
             DNA shared [traits with the] . . . DNA found in the
             underwear and then to debunk it whether through cross-
             examination of the government’s expert or through direct
             examination of a defense expert. The latter option would
             offer the factfinder a dichotomy of believing the [expert]
             employed good science on the one hand and bad science
             on the other, a confusing proposition on top of the already
             highly technical subject matter of DNA testing. . . . [T]his
             court can reduce the prejudice to the accused first by
             permitting the defense to elicit from any witness with
             knowledge and relevant expertise that the accused could


2
 “Catch 22” is defined as “a problematic situation for which the only solution is
denied by a circumstance inherent in the problem or by a rule.” Webster’s
Collegiate Dictionary 180 (10th ed. 1999).


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HENNING—ARMY 20160572

             have and/or should have been excluded as a possible
             contributor to the DNA in the underwear; second, by
             preventing any government witness, including in rebuttal,
             from stating that the accused is a possible contributor to
             that DNA; and third, by not considering the fact, if raised,
             that the accused shared [DNA traits] with the DNA in the
             underwear as evidence that he was a possible contributor
             to that DNA. Given those mitigation remedies the danger
             of unfair prejudice does not substantially outweigh the
             probative value of the evidence, and with those caveats the
             evidence is not excluded.

(emphasis added).

                               LAW AND ANALYSIS

                                  Standard of Review

       We review a military judge’s Mil. R. Evid. 403 evidentiary ruling for an abuse
of discretion. United States v. Collier, 67 M.J. 347, 353 (C.A.A.F. 2009) (citing
United States v. Moss, 63 M.J. 233, 236 (C.A.A.F. 2006)). For a ruling to be an
abuse of discretion, it must be “more than a mere difference of opinion;” rather, it
must be “‘arbitrary, fanciful, clearly unreasonable’ or ‘clearly erroneous.’” United
States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000) (quoting United States v.
Miller, 46 M.J. 63, 65 (C.A.A.F. 1997); United States v. Travers, 25 M.J. 61, 62
(C.M.A. 1987)). This court will not reverse a conviction for an error of law unless
the error materially prejudiced appellant’s substantial rights. Article 59a, UCMJ;
United States v. Powell, 49 M.J. 460, 465 (C.A.A.F. 1998).

                           Mil. R. Evid. 403 Balancing Test

       Mil. R. Evid. 403 requires a military judge to decide whether the probative
value of evidence is “substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the members, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” United
States v. Collier, 67 M.J. 347, 353 (C.A.A.F. 2009) (citing Del. v. Van Arsdall, 475
U.S. 673 (1986)). The military judge’s ruling focused on the evidence’s probative
value and the potential for the receipt of less prejudicial evidence to mitigate against
the harm of unfair prejudice. See United States v. Wright, 53 M.J. 476, 482 (2000)
(providing a non-exhaustive list of factors for the military judge to weigh when
conducting a Mil. R. Evid. 403 balancing test). The probative weight of evidence
cannot be weighed in a vacuum but must be evaluated based on the purpose for
which it is offered.




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HENNING—ARMY 20160572

       The government’s purpose in offering the DNA evidence was to establish the
male DNA found in the victim’s underwear, which was not from the two other men
at the crime scene, corroborated the victim’s testimony that she was sexually
assaulted by appellant. The inevitable “logical and unspoken conclusion” being if
the two other men are excluded and appellant is not excluded–appellant is the
perpetrator. The military judge, however, already ruled the government was
prohibited from presenting evidence that appellant’s DNA was located in the
victim’s underwear because the expert used an unreliable testing formula. 3 With the
government precluded from establishing the inclusion of appellant’s DNA, any other
type of DNA evidence which created a “logical and unspoken conclusion” that
appellant was the perpetrator possessed minimal, if any, probative value. Admitting
such evidence would allow an impermissible inference in direct contravention with
the military judge’s previous ruling. Under this backdrop, the military judge’s
determination that the evidence of the other two men’s exclusion was highly
probative is clearly erroneous.

       As to the second part of the balancing test, we agree with the military judge
that the evidence was highly prejudicial. As stated by defense counsel, allowing the
process of elimination to “leave [appellant] as the sole [unexcluded] person . . .
[who contributed male DNA to the extract in the victim’s underwear was] highly
prejudicial to the court’s [previous] ruling.”

        Our concern is the military judge’s “mitigation remedies” did not rectify the
inherent and highly unfair prejudice of admitting such evidence in direct
contravention of the previous ruling excluding appellant. Mil. R. Evid. 403
“addresses prejudice to the integrity of the trial process, not prejudice to a particular
party or witness.” United States v. Collier, 67 M.J. 347, 354 (C.A.A.F. 2009).
Allowing one ruling to stand, which is in direct opposition to another ruling, impacts
the fairness of the trial process.

       Further, we pause to question the propriety of crafting a remedy to lower the
danger of “highly prejudicial” government evidence by shifting the burden to the
defense to present evidence mitigating the prejudice. The first remedy which
“permit[s] the defense to elicit from any witness” evidence of appellant’s exclusion
after the government’s evidence was already admitted appears to place a burden on
the defense to present evidence. The military judge found the probative value of the
evidence was not substantially outweighed by the danger of unfair prejudice because
the defense could later present evidence to mitigate the harm. A proper Mil. R.
Evid. 403 balancing test would seem to necessitate a review of the probative value
of the government’s evidence as weighed against the danger of unfair prejudice at



3
 A ruling affirmed by CAAF. See United States v. Henning, 75 M.J. 187 (C.A.A.F.
2016).


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HENNING—ARMY 20160572

the time of the evidence’s admittance as opposed to also weighing some future act
requiring the defense to raise evidence to negate the unfair prejudice.

       Even if the military judge’s remedies and balancing test was appropriate, we
find the ruling was nevertheless clearly erroneous because the evidence possessed
minimal, if any, probative value based on the military judge’s previous ruling
regarding appellant. The evidence’s probative value was substantially outweighed
by the danger of unfair prejudice that the “logical and unspoken conclusion” was the
male DNA in the victim’s underwear was from appellant and he was the perpetrator.

      We find appellant’s rights were materially prejudiced because the case
centered on the believability of the victim and the evidence corroborating her
testimony as to the occurrence of the sexual assaults came in the form of the
erroneously admitted DNA evidence excluding the two other men at the scene.

                                  CONCLUSION

      The findings of guilty and the sentence are SET ASIDE. A rehearing may be
ordered by the same or a different convening authority.

      Senior Judge CAMPANELLA and Judge SALUSOLIA concur.

                                        FORTHE
                                       FOR  THECOURT:
                                                COURT:




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




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