UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             BURTON, HAGLER, and FLEMING
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                         v.
                         Sergeant NORMAN L. CLARK, SR.
                           United States Army, Appellant

                                      ARMY 20170023

                             Headquarters, Fort Campbell
                         Matthew A. Calarco, Military Judge
                    Colonel Susan K. Arnold, Staff Judge Advocate


For Appellant: Lieutenant Colonel Christopher D. Carrier, JA (argued); Lieutenant
Colonel Todd W. Simpson, JA; Lieutenant Colonel Christopher D. Carrier, JA (on
brief and brief on specified issue).

For Appellee: Captain Meredith M. Picard, JA (argued); Lieutenant Colonel Eric K.
Stafford, JA; Major Hannah E. Kaufman, JA; Captain Meredith M. Picard, JA (on
brief); Lieutenant Colonel Eric K. Stafford, JA; Captain Meredith M. Picard, JA (on
brief on specified issue).


                                         10 June 2019

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FLEMING, Judge:

       Following his convictions for raping and sexually assaulting his biological
four-year-old daughter, AC, appellant asserts the military judge erred in failing to
strike the testimony of two Criminal Investigation Command (CID) Special Agents
(SAs) under Rule for Courts-Martial [R.C.M.] 914. Even if the military judge erred
in his analysis of R.C.M. 914 by failing to strike the SAs’ testimony, any alleged
error did not materially prejudice appellant’s substantial rights.

      A panel of officer and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of one specification of false official
statement, one specification of rape of a child, and one specification of sexual
CLARK—ARMY 20170023

assault of a child, in violation of Articles 107 and 120b, Uniform Code of Military
Justice, 10 U.S.C. §§ 907, 920b (2012) [UCMJ]. The convening authority approved
the panel’s adjudged sentence of a dishonorable discharge, confinement for twelve
years, total forfeiture of all pay and allowances, and reduction to the grade of E-1.

      This case is before us under Article 66, UCMJ. Appellant raises one
assignment of error which warrants discussion but no relief.

                                   BACKGROUND

        This case started when AC complained of vaginal pain in the form of a rash
and a burning sensation during urination. At a medical appointment to treat AC’s
vaginal pain, a pediatric nurse observed vesicles (fluid filled blisters) on the inside
of AC’s labia majora. 1 Testing of these vesicles revealed AC had contracted a form
of genital herpes, Herpes Simplex Virus Type-2 (HSV-2), a viral infection. HSV-2
genital herpes is contracted when a person’s genitalia makes direct physical contact
with an infected person’s mouth, genital tract, or anus. AC’s treating pediatrician
testified “a preadolescent female, not sexually active female, would obtain or
contract genital herpes . . . in some non-innocent sexual way . . . .”

       An investigation commenced to determine the infected person who sexually
engaged with AC, causing her to contract HSV-2 genital herpes and manifest
vesicles on the inside of her labia majora. This court-martial commenced after
appellant tested positive for HSV-2 genital herpes and confessed to CID agents to
raping and sexually assaulting AC. Appellant’s sole assignment of error involves
his confession to CID agents during the course of two separate interviews conducted
on back-to-back days.

       On the first day, appellant waived his rights, engaged in a lengthy interview
with CID agents, and made several incriminating admissions. On the second day,
appellant voluntarily returned to the CID office, again waived his rights, and
confessed, in the beginning of the interview, to penetrating AC with his penis to the
depth of his fingernail. Appellant stated AC was too tight for him to enter further so
he thrust his penis between her legs until he ejaculated.

       Appellant’s two interviews were video recorded by CID using a case tracker
system. After an interview, an agent must download a video recording from the case
tracker system onto a digital media disc to preserve the interview. The first day’s
interview comprised three discs [Discs 1, 2, and 3] and the second day’s interview


1
 The labia majora is defined as “the outer fatty folds bounding the vulva.”
Webster’s Third New International Dictionary 1259 (2002).




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CLARK—ARMY 20170023

comprised two discs [Discs 4 and 5]. At the time of downloading, the CID agents
believed Disc 4 and Disc 5 contained the entire interview from day two. Several
months after appellant’s interviews, CID agents discovered the contents of Disc 4
actually depicted the beginning of the day one interview, as opposed to the
beginning of the day two interview where appellant confessed to penetrating AC.
The failure to adequately copy and preserve Disc 4 underlies appellant’s alleged
R.C.M. 914 error.

       Upon learning about the problems with Disc 4, the defense first filed a motion
under R.C.M. 703 to abate the proceedings. 2 A lengthy motion hearing ensued to
determine if such a Disc 4 existed, the efforts CID agents took to find such a disc,
and, in the absence of any such disc, the actual nature and contents of the beginning
of the day two interview. The military judge made detailed written findings of fact
and conclusions of law on the R.C.M. 703 motion, which are fully supported by the
record, determining that CID failed to preserve a Disc 4 depicting the beginning of
the day two interview. We now pause to highlight the relevant portions of the
military judge’s ruling. 3

        The military judge found “[d]espite relatively exhaustive efforts to locate . . .
[a disc depicting the beginning of the day two interview], to include searching every
file in the office and examining other copies that should have been duplicates of the
[disc] . . . that [portion of the] interview was never recovered.” Having determined
that portion of the interview no longer existed, the military judge next made findings
of fact regarding the nature of the lost evidence.

      Four CID agents and one military special victim prosecutor, Lieutenant
Colonel (LTC) JB, testified that, at the beginning of the day two interview, appellant


2
 While an accused is not entitled to production of evidence that is lost or destroyed,
Rule for Court-Martial 703(f)(2) provides:

             [i]f such evidence is of such central importance to an issue
             that it is essential to a fair trial, and if there is no adequate
             substitute for such evidence, the military judge shall grant
             a continuance or other relief in order to attempt to produce
             the evidence or shall abate the proceedings, unless the
             unavailability of the evidence is the fault of or could have
             been prevented by the requesting party.
3
  Although the military judge’s written ruling involved the defense motion to compel
discovery, the military judge later adopted, with the parties’ consent, his findings of
fact and conclusions of law from the R.C.M. 703 ruling for his R.C.M. 914 ruling.




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CLARK—ARMY 20170023

confessed to inserting his penis into AC’s vagina and ejaculating. The witnesses
testified that appellant stated he was “fishing” between AC’s legs and buttocks as he
tried to insert his penis into what he called his daughter’s “pussy.” The witnesses
confirmed that appellant waived his rights, voluntarily spoke to the agents, received
multiple breaks and food, and did not receive any threats or promises from CID.
The defense presented no witnesses during the motion hearing to contradict the
government witnesses’ testimony as to appellant’s incriminating statements or his
treatment during the interview. 4

     When questioned regarding any possible CID motivation for losing the disc,
LTC JB stated:

               [I]f there was a worse DVD for CID to lose, if you will,
               this would be it. I mean, there’s absolutely nothing on
               this DVD that painted CID in a bad light, whatsoever.
               There’s absolutely no reason for any agent to want to get
               rid of it or not to produce it because there was . . . nothing
               exculpatory on it, it was all inculpatory in detailing what
               he had done to his daughter. So there would absolutely be
               no reason for an agent to try to get rid of it, I mean, there
               had been multiple attorneys there watching.

       The military judge denied the defense motion to abate the proceedings
because of the lost disc. 5 While this ruling could have been the culmination of any
further litigation regarding the lost disc at the trial level, the government opened the
door to a defense motion under R.C.M. 914 when two SAs testified as to comments
they made to appellant from the beginning of the day two interview. The defense
moved to strike their testimony under R.C.M. 914. The military judge denied the
defense R.C.M. 914 motion holding that the comments of the agents from the
beginning of the day two interview were not “statements” for purposes of R.C.M.
914.


4
  Appellant testified for the first time during the defense case-in-chief on the merits
that he was, as stated in his appellate brief, allegedly “cajoled, hectored, or induced”
by CID agents to confess to penetrating AC. We note the defense never filed any
motion to suppress appellant’s statements as involuntarily or otherwise
inappropriately obtained during either of the two interviews. Having closely
reviewed Discs 1, 2, 3, and 5, we do not find evidence of alleged cajoling, hectoring,
or inducement by CID agents during appellant’s interviews that precipitated
appellant’s admissions to engaging in sexual activity with AC.
5
    Appellant does not challenge this ruling on appeal.




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CLARK—ARMY 20170023

                               LAW AND DISCUSSION

       We review a military judge’s decision to strike testimony under R.C.M. 914
using an abuse of discretion standard. United States v. Muwwakkil, 74 M.J. 187, 191
(C.A.A.F. 2015) (citations omitted). An abuse of discretion occurs when the
military judge’s “findings of fact are clearly erroneous or his conclusions of law are
incorrect.” United States v. Olson, 74 M.J. 132, 134 (C.A.A.F. 2015) (citations
omitted).

       At bar, the military judge found the comments by the SAs during the
beginning of the day two interview did not constitute “statements” for the purposes
of R.C.M. 914. Although the military judges’ analysis is likely erroneous as a
matter of law based on the broad definition of “statement” under R.C.M. 914, we
need not ultimately decide this issue. As discussed in Section B, below, any alleged
error in not striking the SAs’ testimony did not materially prejudice a substantial
right of appellant under Article 59, UCMJ. 6

                    A. Good Faith and Harmless Error under R.C.M. 914

        Rule for Court-Martial 914 states “[a]fter a witness other than the accused has
testified on direct examination, the military judge” upon motion of the opposing
party shall order the production of “any statement of the witness that relates to the
subject matter concerning which the witness has testified . . . .” R.C.M. 914(a). A
“statement” is defined, in part, as “[a] substantially verbatim recital of an oral
statement made by the witness that is recorded contemporaneously with the making
of the oral statement and contained in a[n] … electrical, or other recording . . . .”
R.C.M. 914(f)(2). If the witness’ statement is not provided to the opposing party,
“the military judge shall order that the testimony of the witness be disregarded by
the trier of fact and that the trial proceed, or, if it is the trial counsel who elects not
to comply, shall declare a mistrial if required in the interest of justice.” R.C.M.
914(e).

       “Although not expressly mentioned [in R.C.M. 914(e)] the good faith loss
and harmless error doctrines under the Jencks Act would apparently apply.” 7 Rule


6
  While there are two remedies under R.C.M. 914, the defense only requested
striking the SAs’ testimony.
7
  The Jencks Act, 18 U.S.C. § 3500, arose following the Supreme Court’s decision in
Jencks v. United States, 353 U.S. 657 (1957). The Act requires a judge, upon
defense motion, to compel the government to provide a witness’s prior statements
related to the subject matter of the testimony provided by the witness on direct

                                                                          (continued . . .)


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CLARK—ARMY 20170023

for Court-Martial 914(e) analysis at A21-65. See also United States v. Marsh, 21
M.J. 445, 451 (C.M.A. 1986) (recognizing “[t]he Supreme Court has indicated on
several occasions that good-faith loss . . . may not require the same sanction
required for deliberate suppression or for bad-faith destruction [of a statement].”);
United States v. Jarrie, 5 M.J. 193, 195 (C.M.A. 1978) (finding a good faith
exception is “generally limited in its application”).

       Because the military judge denied the defense motion by finding R.C.M. 914
inapplicable, he did not expand his ruling to consider whether these good faith and
harmless error doctrines applied. His ruling, however, is replete with findings of
fact and conclusions of law as to the government’s acts and the weight of the lost
evidence, which appear to present a narrow set of circumstances upon which the
“generally limited” good faith doctrine may have applied. Although we do not
decide this case based on a good faith doctrine analysis, the military judge’s relevant
findings aid our Article 59, UCMJ analysis.

       First, the military judge found: (1) “no evidence of bad faith on the part of
any government actor either before or after the evidence was lost;” (2) that the
defense “presented . . . no actual evidence of [any] exculpatory value” existing on
the lost disc; and (3) “the lost evidence contain[ed] the accused’ own inculpatory
statements.”

       The military judge, as did this court, reviewed all remaining interview discs
(Discs 1, 2, 3 and 5) which were admitted at trial. During the day one interview
(Discs 1, 2, and 3), appellant admitted to snuggling in bed with AC and awakening
with an erection on two or three occasions, and he noticed a wet spot on the bed
which appeared to be his ejaculate on one of these occasions. During the day two
interview (Disc 5), appellant described additional sexual acts of rubbing his erect
penis on AC’s buttocks over her clothes and putting his penis between her legs, but
he was unsure if he achieved penetration. The four combined discs contain
appellant’s detailed description of egregious sexual acts between himself and his
daughter.

      The military judge, as did we, also observed in Disc 5 appellant referencing
comments he made earlier in the beginning of the day two interview concerning his
sexual abuse of AC (comments that would have been on the lost Disc 4). As shown
on Disc 5, and noted by the judge, appellant referenced “an event they had already


(. . . continued)
examination. Rule for Court-Martial 914 follows the language of the Jencks Act, but
extends to disclosure of the statements of defense witnesses other than those
provided by the accused. See Muwwakkil, 74 M.J. at 190; R.C.M. 914(a)(2).




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CLARK—ARMY 20170023

discussed earlier in the interview, the event where he admitted to penetrating AC’s
vagina with his penis . . . .”

                                B. Article 59, UCMJ Analysis

        Assuming the military judge abused his discretion by incorrectly interpreting
the meaning of “statement” under R.C.M. 914, the question becomes whether we can
test this error for prejudice under Article 59, UCMJ. Appellant, citing United States
v. Muwwakkil, argues that this court is constrained in responding to the military
judge’s error by the remedies provided in R.C.M. 914; since neither remedy was
provided, the argument follows, we must therefore set aside the findings of guilty
and sentence. We disagree.

        In Muwwakkil, our superior court noted that the plain text of R.C.M. 914
provided two remedies for noncompliance without referencing a predicate finding of
prejudice or harmless error at the trial stage. 74 M.J. at. 194. The Court of Appeals
for the Armed Forces (CAAF) reasoned “[a]bsent any reference to prejudice or
harmless error, at [the trial stage] of the proceedings . . . the military judge was not
required to engage in a prejudice analysis.” Id. Defense argues this language
should be interpreted to mean that this court should not engage in a prejudice
analysis regarding a potential R.C.M. 914 error. We do not read Muwwakkil so
narrowly. Although the CAAF states such an analysis is “not required” by a trial
judge, the CAAF does not state such analysis by a trial judge is prohibited and, more
importantly, this language does not address the authority of an appellate court under
Article 59, UCMJ. We further highlight Muwwakkil’s limited applicability to our
current case. As the CAAF recognized, Muwwakkil was an Article 62, UCMJ,
appeal in which the judge granted a defense motion to strike testimony under R.C.M.
914, resulting in an abated trial, as opposed to an appeal following a complete trial.
Id. at 194 n.4. Appellant’s case involves an Article 66, UCMJ, appeal of a
completed trial in which the military judge denied the defense motion to strike
testimony.

       Applying an Article 59, UCMJ prejudice analysis is not only compatible with
Muwwakkil, but also comports with United States Supreme Court precedent
regarding Jencks Act violations. See United States v. Goldberg, 425 U.S. 94 (1976).
As stated by CAAF “[g]iven the similarities in language and purpose between
R.C.M. 914 and the Jencks Act, we conclude that . . . Supreme Court [case law]
informs our analysis of R.C.M. 914 issues.” Muwwakkil, 74 M.J. at 191.

        In Goldberg, the Supreme Court remanded the case to the trial level to
conduct a prejudice analysis regarding a potential Jencks Act violation. Id. at 111.
Initially, the trial judge denied a defense motion to produce a prosecutor’s written
notes of a witness statement as privileged attorney work product. Id. at 101. After
the judge’s ruling the trial continued and concluded in a criminal conviction. The



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CLARK—ARMY 20170023

Supreme Court overruled the trial judge as to his reasoning for denying the defense
motion on the basis of the attorney work product privilege, but remanded the case
for the judge to determine if the notes should have been otherwise provided to the
defense, and if yes, whether such error was harmless in light of the fully complete
trial. Id. at 111-12. (“[I]f the [trial judge] concludes that the Government should
have been required to deliver the material, or part of it, to petitioner, and that error
was not harmless, the [judge] will vacate the judgement of conviction and accord
petitioner a new trial.”).

       Article 59(a), UCMJ, provides “a finding and sentence of a court-martial may
not be held incorrect on the ground of an error of law unless the error materially
prejudices the substantial rights of the accused.” For nonconstitutional evidentiary
error the test for prejudice “is whether the error had a substantial influence on the
findings.” United States v. Fetrow, 76 M.J. 181, 187 (C.A.A.F. 2017) (quoting
United States v. Gunkle, 55 M.J. 26, 30 (C.A.A.F. 2001). “We evaluate prejudice
from an erroneous evidentiary ruling by weighing (1) the strength 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. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999) (citation omitted).

       Looking specifically at this fully complete trial, appellate defense counsel
conceded during oral argument that appellant’s R.C.M. 914 motion at trial applied
only to the comments contained on the lost Disc 4. The admissions by appellant
during this portion were perhaps the most damning, and thus were clearly material.
However, even if we struck the two CID SAs’ testimony regarding the beginning of
the day two interview, the following government evidence remains from appellant’s
fully complete trial: (1) appellant’s admissions as to his sexual acts against AC on
Discs 1, 2, 3, and 5; (2) appellant’s testimony at trial where he admitted he told the
SAs during the day two interview that he penetrated AC’s vagina with his penis; (3)
AC and appellant’s HSV-2 genital herpes positive status; and (4) the medical expert
testimony as to the sexual activity required to contract HSV-2 genital herpes.

       Together, even without the testimony as to the portions of the interview
covered by Disc 4, the government presented an overwhelming case as to appellant’s
guilt. By contrast, the defense case was weak. Appellant’s testimony and his claims
as to why he made admissions to CID are simply incredible. The remainder of the
defense’s case was equally unpersuasive.

       After review of the entire record, all the properly admitted and highly
inculpatory government evidence leads us to the conclusion that any potential error
in not striking the two SAs’ testimony regarding the comments from the lost Disc 4




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CLARK—ARMY 20170023

did not have a substantial influence on the findings. We therefore find any error in
the admission of testimony concerning that portion of appellant’s interview covered
by Disc 4 harmless. 8

                                    CONCLUSION

      The findings of guilty and sentence are AFFIRMED.

Senior Judge BURTON and Judge HAGLER concur.

                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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




8
  Even if we considered this a constitutional error, we would still affirm the findings
of guilty and sentence. “A constitutional error is harmless when it appears beyond a
reasonable doubt that the error complained of did not contribute to the verdict
obtained.” United States v. Chisum, 77 M.J. 176, 179 (C.A.A.F. 2018) (citation
omitted). “To say that an error did not ‘contribute’ to the ensuing verdict is not, of
course, to say that the jury was totally unaware of that feature of the trial later held
to have been erroneous, but rather, to find that error unimportant in relation to
everything else the jury considered on the issue in question, as revealed in the
record.” Id. (internal quotation marks omitted) (citation omitted). In addition to
the factors already noted, to include the strength of the government’s case, we also
consider defense counsel’s robust cross-examination of the SAs concerning their
interview techniques and the cumulative nature of appellant’s other admissions
during the interview captured on the remaining discs. See Delaware v. Van Arsdall,
475 U.S. 673, 684 (1986). The testimony as to appellant’s statements contained on
Disc 4, on balance with the other evidence presented at trial, was unimportant to the
outcome of the case. We are convinced beyond a reasonable doubt that this
testimony did not contribute to the findings of guilty.




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