UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           COOK, TELLITOCCI, and HAIGHT
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Specialist MICHAEL J. NORD
                          United States Army, Appellant

                                  ARMY 20120862

                       Headquarters, 25th Infantry Division
                          David L. Conn, Military Judge
                  Colonel Mark A. Bridges, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Matthew M. Jones, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Captain Daniel M. Goldberg, JA (on brief).


                                   28 August 2014
                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

TELLITOCCI, Judge:

       An officer and enlisted panel sitting as a general court-martial convicted
appellant, contrary to his pleas, of one specification of wrongful possession and use
of methamphetamine, one specification of abusive sexual contact, and one
specification of conduct prejudicial to good order and discipline and of a nature to
bring discredit upon the armed forces, in violation of Articles 112a, 120, and 134,
Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 912a, 920, and
934. The panel sentenced appellant to a dishonorable discharge, 5 years
confinement, reduction to E-1, and forfeiture of $1,091.00 pay per month for 60
months. The convening authority approved the adjudged sentence.
NORD—ARMY 20120862

       This case is before us pursuant to Article 66, UCMJ. Appellant raises
numerous assignments of error, three of which merit discussion and two of which
merit relief. 1

                                        FACTS

       Appellant was convicted of abusive sexual contact with Ms. BA while she was
substantially incapacitated. The evidence at trial demonstrated that BA had no
recollection of the events of the evening other than drinking at a local bar. After
awakening the next morning BA was informed by a witness (Mr. JM) that JM had
observed BA kneeling on the bed naked while appellant was behind her thrusting his
hips with his pants around his ankles. Based upon BA’s discussions with JM and her
anal bleeding and discomfort, BA concluded that appellant had engaged in anal
intercourse with her and she became agitated. Ms. BA did not testify at the trial.

       After multiple pretrial motions and argument, the military judge allowed into
evidence two series of statements by BA. The first series were made during a phone
conversation with a friend in which BA stated that appellant had raped her. The
military judge admitted this statement as an excited utterance pursuant to Military
Rule of Evidence [Mil. R. Evid.] 803(2). In the second series of statements, she told
the triage nurse at the medical facility that appellant had anally raped her. The
military judge admitted that under the medical treatment exception of Mil. R. Evid.
803(4). The military judge also conducted a thorough Confrontation Clause analysis
and determined that these statements were non-testimonial. Other statements by BA
were excluded by the military judge and will not be discussed here.

                              LAW AND DISCUSSION

                         Admissibility of Hearsay Statements

      In his first assigned error, appellant alleges:

             THE MILITARY JUDGE ERRED BY IMPROPERLY
             ADMITTING MULTIPLE INADMISSIBLE HEARSAY
             STATEMENTS.

       We review a military judge’s ruling on the admissibility of evidence under an
abuse of discretion standard and will reverse only if the military judge’s findings of
fact are clearly erroneous or if his decision is influenced by a clearly erroneous view
1
 Appellant also personally raises three issues pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), none of which merit discussion or relief.




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NORD—ARMY 20120862

of the law. United States v. Feltham, 58 M.J. 470, 474 (C.A.A.F. 2003); United
States v. Hollis, 57 M.J. 74, 79 (C.A.A.F. 2002).

      Normally, hearsay is not admissible absent an exception. Mil. R. Evid. 802.

      The gist of appellant’s argument is that BA’s statements were improperly
admitted because they are “double hearsay” citing, as an example, the second
footnote in United States v. Williamson, 26 M.J. 115, 117 (C.M.A. 1988). Appellant
argues that because BA had no recollection of the events, her knowledge was based
on what JM told her and, therefore, anything she thought or believed as a result was
inadmissible hearsay. Therefore, according to this logic, even if the Mil. R. Evid.
803 hearsay exceptions applied, the statements’ initial hearsay nature prevented
admission.

      This argument fails simply because the statements do not contain double
hearsay. BA was not repeating statements made by JM. She did not say “JM told
me that I was raped.” She was espousing her opinion and belief about events that
had taken place, not parroting what someone else said.

       Additionally, as a part of the same assignment of error, appellant argues that
trial defense counsel was ineffective for failing to object to the statements made to
the triage nurse. Because these statements were included in the pretrial motions and
litigated before the military judge, the trial defense counsel’s objections were noted
and preserved in the record. Trial defense counsel objected to and litigated the
admissibility of BA’s statements, but could not have objected to the “double
hearsay” because there was none.

       Assuming, arguendo, that the statements were impermissibly admitted and
that the trial defense counsel was ineffective, we will test for prejudice. Strickland
v. Washington, 466 U.S. 668, 687 (1984). Even if erroneous, the admission of the
two statements by BA was harmless as they were of little probative value. The
circumstances surrounding BA’s lack of direct recollection were before the fact-
finder via the triage nurse’s testimony, as well as JM’s testimony as to what he saw
happening in the bedroom. The trial defense counsel cross-examined witnesses and
argued that BA had no recollection of the events and was only repeating what she
was told.

       The other evidence presented by the government is legally and factually
sufficient. See, e.g., United States v. Brooks, 60 M.J. 495, 497-98 (C.A.A.F. 2005)
and United States v. Craion, 64 M.J. 531, 532 (Army Ct. Crim. App. 2006). This
included JM’s eyewitness testimony that appellant was having sex with BA,
specifically, that appellant was behind BA with his pants around his ankles thrusting
at her while she was naked and kneeling on the bed with her head down. There were
also physical findings of perianal injuries to BA discussed by the sexual assault



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NORD—ARMY 20120862

nurse examiner, and BA’s DNA was found in the crotch area of appellant’s shorts.
Finally, appellant made an oral statement to criminal investigators in which
appellant incredibly described how he came to be standing behind BA with his pants
down at the time the witness entered the room: that she fell off the bed and grabbed
his shorts on the way to the floor.

                                 Article 134 offense

      Appellant also alleges that Charge V and its Specification 2 failed to state an
offense and should, therefore, be dismissed. The government concedes that this
charge should be dismissed based upon a failure of proof. We accept the
government’s concession and will take appropriate action in our decretal paragraph.

      Appellant further points out that the promulgating order is incorrect in part
and we agree. Although the military judge merged Specifications 1 and 2 of Charge
IV prior to findings in response to a defense motion, the promulgating order reflects
two separate charges and convictions: Specification 1 alleges wrongful use of
methamphetamine and Specification 2 alleges wrongful possession of
methamphetamine. To properly reflect the proceedings, Specification 1 should be
renamed “The Specification” and should allege wrongful possession and use, as
follows: “Did, at or near Wheeler Army Airfield, Hawaii, on or about 11 August
2011, wrongfully possess and use methamphetamine.”

                                   CONCLUSION
 
       Accordingly, the findings of guilty as to Charge V and its Specification are
set aside, and the charge and its specification are dismissed. The findings of guilty
to the remaining charges and specifications, as amended, are AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of the circumstances presented
by appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).

      In evaluating the Winckelmann factors, we first find no dramatic change in the
penalty landscape or exposure which might cause us pause in reassessing appellant’s

2
  “In that [the accused], U.S. Army, did at or near, Wheeler Army Airfield, on or
about 19 September 2011, ask SGT [DL] to take a urinalysis for him and that such
conduct was to the prejudice of good order and discipline in the armed forces and
was of a nature to bring discredit upon the armed forces.”




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NORD—ARMY 20120862

sentence. Second, appellant was sentenced by panel members but because the
remaining offenses are not based on customs of the service, this factor has less
weight. Third, we find the nature of the remaining offenses still captures the
gravamen of the original specifications. Finally, based on our experience, we are
familiar with the remaining offenses so that we may reliably determine what
sentence would have been imposed at trial.

       In reassessing the sentence, based on the noted error and the entire record, we
AFFIRM only so much of the sentence as provides for a dishonorable discharge, 58
months confinement, reduction to E-1, and forfeiture of $1,091.00 pay per month for
58 months. We find this reassessed sentence is not only purged of any error but is
also appropriate. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings and sentence set aside by this
decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a).

Senior Judge COOK and Judge HAIGHT concur.

                                       FOR THE COURT:




                                       ANTHONY O. POTTINGER
                                       ANTHONY
                                       Chief Deputy O. POTTINGER
                                                    Clerk of Court
                                       Chief Deputy Clerk of Court




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