              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                Before
            F.D. MITCHELL, J.A. FISCHER, K.M. MCDONALD
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      JERAMIE M. HUTCHINSON
                 INFORMATION SYSTEMS TECHNICIAN
                    SECOND CLASS (E-5), U.S. NAVY

                           NMCCA 201400022
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 29 August 2013.
Military Judge: Col Daniel Daugherty, USMC.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: CDR S.J. Gawronski,
JAGC, USN.
For Appellant: Maj John Stephens, USMC; LT David
Dziengowski, JAGC, USN.
For Appellee: Maj Crista Kraics, USMC.

                              4 March 2015

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A general court-martial consisting of officer and enlisted
members convicted the appellant, contrary to his pleas, of one
specification of rape in violation of Article 120, Uniform Code
of Military Justice, 10 U.S.C. § 920. The members sentenced the
appellant to confinement for 3 months and a bad-conduct
discharge. The convening authority (CA) approved the sentence
as adjudged and, except for the bad-conduct discharge, ordered
it executed.

     The appellant raises three assignments of error (AOE): (1)
the military judge abused his discretion when he admitted the
testimony of an expert in the field of sexual assault trauma
response; (2) the evidence is legally and factually
insufficient; and (3) an appearance of unlawful command
influence infected his court-martial. 1

     After careful consideration of the record of trial, the
parties’ pleadings, and the appellant’s assignments of error, we
conclude that the findings and the sentence are correct in law
and fact and that no error materially prejudicial to the
substantial rights of the appellant was committed. Arts. 59(a)
and 66(c), UCMJ.

                                  Background

     The appellant and Petty Officer JB (hereinafter JB) met on
a dating website and exchanged communications for approximately
two years prior to meeting in March 2013. They went hiking on
their first date and JB testified that during the hike they
flirted, held hands, and kissed. JB further testified that she
rebuffed the appellant’s additional physical advances and let
him know her boundaries in that regard.

     Following their hike, the appellant and JB returned to his
house and once inside, JB followed the appellant upstairs to his
bedroom. JB testified that she then engaged in further kissing
with the appellant, however she told the appellant that she
wanted her clothes to remain on. JB testified that the
appellant responded by undressing himself and asking her to rub
his penis. JB testified that she eventually complied with the
appellant’s request, but when he tried to take off her pants she
told him “no.” 2 JB testified that the appellant then flipped her
onto her stomach, placed his hand on the back of her neck, and
tried to pull off her pants. She testified that he then turned
her onto her back, placed his hand on her neck, and pulled off
her pants. She stated that he rubbed her vagina with his
fingers and violently thrust his penis into her mouth while

1
  We find no merit to AOE III.   United States v. Clifton, 35 M.J. 79, 81-82
(C.M.A. 1992).
2
    Record at 399.


                                       2
grabbing her hair. 3 JB further testified that the appellant then
rubbed his penis on her vagina while she was saying “[n]o, no,
no” and then penetrated her vagina with his penis while choking
her. 4 JB stated that after thrusting between twelve and fifteen
times and after she kept telling him “no,” the appellant stopped
and then masturbated and ejaculated on her stomach. 5

     Afterwards, the appellant and JB went downstairs, and JB
sat next to the appellant on a couch for ten to fifteen minutes.
JB testified that she stayed there because she “was trying to
find the best way to leave without making a scene.” 6 The
appellant’s roommate came home and JB left shortly thereafter. 7
JB testified that on her way home she received a text message
from the appellant asking her if she had fun and she responded
that she did have fun at the park but he was a “bit forceful.” 8
JB stated that the appellant then sent her a text message
saying, “I’m sorry. I must have misread your signs.” 9

     The following day, JB’s supervisor found her crying while
she manned her post at work. Feeling her emotional state
rendered her unfit for duty, JB’s supervisor removed JB from her
post and she then requested to speak with a chaplain. Shortly
thereafter, JB filed an unrestricted sexual assault report and
underwent a physical examination. Local authorities assumed
cognizance of the investigation and Investigator Nordstrom of
the Groton Police Department went to the appellant’s home to
question him regarding JB’s allegations. In response to
Investigator Nordstrom’s questions, the appellant admitted to
engaging in sexual activity with JB, however he denied engaging
in intercourse with her and maintained all sexual activity was
consensual. Inspector Nordstrom testified that the appellant
admitted to pulling JB’s hair and putting his hand across JB’s



3
    Id. at 400-01.
4
    Id. at 401.
5
    Id. at 402.
6
    Id. at 403.
7
  The appellant’s roommate testified at trial that JB did not have any visible
signs of concern or any physical indicators that she had been assaulted.
8
    Id. at 436.
9
    Id.


                                      3
throat during the sex acts because, “[s]he’s one of those girls
that liked it.” 10

     Additional facts necessary for the resolution of particular
assignments of error are included below.

                                  Expert Testimony

     The appellant first argues the military judge abused his
discretion in admitting expert testimony of Doctor Rachel
Tambling, Ph.D., on victim trauma and counterintuitive victim
behavior because the expert’s testimony did not assist the trier
of fact and was not relevant. He asserts that, as a result, the
expert’s testimony impermissibly bolstered the Government’s
case.

     The trial defense counsel submitted a timely motion to
exclude this expert testimony. 11 The military judge denied the
motion and provided an extensive analysis of the factors
outlined in United States v. Houser, 36 M.J. 392, 397 (C.M.A.
1993). 12 Following voir dire, the trial defense counsel asked
the military judge to reconsider the admissibility of Dr.
Tambling’s testimony in light of the members’ training on sexual
assault and their responses during voir dire that they did not
expect victims to act in a particular manner. 13 The military
judge denied the defense’s motion. 14

     During the Government’s case in chief, Dr. Tambling was
called as an expert witness in the areas of “victim trauma

10
     Id.    at 498.
11
     Appellate Exhibit XVI.
12
     AE XXIII.    The Houser factors include:

           (1) “the qualifications of the expert,” MIL. R. EVID. 702;
           (2) “the subject matter of the expert testimony,” MIL. R. EVID. 702;
           (3) “the basis for the expert testimony,” MIL. R. EVID. 703;
           (4) “the legal relevance of the evidence,” MIL. R. EVID. 401-402;
           (5) “the reliability of the evidence,” MIL. R. EVID. 401; and
           (6) “whether the probative value of the testimony outweighs other
           considerations,” MIL. R. EVID. 403.

Houser, 36 M.J. at 397.
13
     Record at 356-57.
14
     Id. at 363.


                                            4
related to sexual assaults, [and] victim behavior and response
during and after a sexual assault.” 15 Dr. Tambling testified
concerning the symptoms of post-traumatic stress disorder
(PTSD), explanations for counterintuitive behavior of sexual
assault victims, and common victim responses to sexual assault. 16
Dr. Tambling did not provide any diagnosis of JB or offer an
opinion as to whether she believed JB was a victim of sexual
assault.

     After Dr. Tambling’s testimony, the military judge gave the
members the following instruction:

        The members are reminded that this witness and these
        types of witnesses work with people who report claims
        of sexual trauma. This witness has no independent
        knowledge of the truth or the veracity of any report
        that she receives.

        You must consider this fact when you determine what,
        if any, weight to give to the testimony of these types
        of witnesses. 17

     During the defense case in chief, Dr. Thomas Grieger, M.D.,
a clinical psychiatrist, was called as an expert in the field of
behavioral science research. Dr. Grieger testified regarding
the research methodologies used in the studies likely relied
upon by Dr. Tambling, as well as the limitations of such studies
in the context of assisting a trier of fact in a criminal trial.

     While instructing the members on findings, the military
judge stated:

             You heard the testimony of Doctor Rachel . . .
        Tambling, PhD; and the testimony of Doct[]or Thomas
        Grieger, M.D. They are known as expert witnesses
        because their experience, knowledge, skill, training,
        or education may assist you in understanding the
        evidence or in determining a fact in issue. You are
        not required to accept the testimony of an expert
        witness or give it more weight than the testimony of
        an ordinary witness. You should, however, consider


15
     Id. at 466.
16
     Id. at 458, 467-77.
17
     Id. at 492-93.
                                   5
        their qualifications on the subjects to which they
        testified.

             Only you, the members, determine the credibility
        of the witnesses and what the facts are in this case.
        No expert or other witness can testify that the
        alleged victim’s account of what occurred is true or
        credible, or that the expert believes the alleged
        victim. To the extent that you believed Dr. Tambling
        or Investigator Nordstrom testified or implied that
        she believed the alleged victim, or that a crime
        occurred, or that the alleged victim is credible, you
        may not consider that as evidence. 18

     We review a military judge’s ruling admitting expert
testimony for an abuse of discretion. United States v. Norris,
55 M.J. 209, 212 (C.A.A.F. 2001) (citations omitted).

     PTSD and “rape-trauma-syndrome testimony by a properly
qualified expert may be admissible to assist the trier of fact
to understand the evidence.” Houser, 36 M.J. at 398-99; United
States v. Savage, 30 M.J. 863, 865 (N.M.C.M.R. 1990) (holding
that “an expert on PTSD may testify as to the psychological or
emotional trauma that an alleged rape victim exhibits and
whether the exhibited trauma is consistent with the history
given by the victim”); United States v. Carter, 22 M.J. 771,
776-77, (A.C.M.R. 1986), aff’d, 26 M.J. 428 (C.M.A. 1988)
(holding “rape trauma syndrome evidence is admissible on the
merits on the issue of consent when presented by a properly
qualified expert and accompanied by a proper limiting
instruction by the military judge”). An expert may testify as
to what symptoms are found among those who have suffered from
sexual abuse and whether the victim has exhibited these
symptoms. See United States v. Harrison, 31 M.J. 330, 332
(C.M.A. 1990) (allowing such evidence in child sexual abuse
cases). However, the expert cannot “opine as to the credibility
or believability of victims or other witnesses,” United States
v. Birdsall, 47 M.J. 404 (C.A.A.F. 1998) (citations omitted), or
as to whether the expert believes the rape actually occurred,
Savage, 30 M.J. at 866.

     At trial, the defense highlighted several of JB’s
counterintuitive behaviors during and after the alleged sexual
assault as evidence that she consented. Dr. Tambling’s
testimony was used to rebut those claims. She did not testify

18
     Id. at 706.
                                   6
that she believed JB was telling the truth concerning the rape
allegation, or that the alleged rape occurred. Such testimony
would have been improper. She instead testified to common
victim responses and the symptoms of PTSD. Such testimony has
been accepted in cases involving allegations of rape or other
sexual misconduct. See Savage, 30 M.J. 863, 865; Carter, 22
M.J. at 772; see generally United States v. Johnson, 35 M.J. 17,
19 (C.M.A. 1992).

     Moreover, the military judge permitted the defense to call
Dr. Grieger to counter Dr. Tambling’s testimony and instructed
the members concerning the limited use of Dr. Tambling’s
testimony immediately after she testified and again during
instructions on findings. We are confident that the members
understood and followed the military judge's instructions. 19 See
Carter, 22 M.J. at 776.

     In this case we find that the military judge properly
limited Dr. Tambling’s testimony, that she did not exceed those
limits while testifying, and that the military judge did not
abuse his discretion in admitting this evidence. See Houser, 36
M.J. at 397. We are not persuaded by the appellant’s assertion
that the members’ sexual assault training 20 as well as their
responses to defense counsel’s voir dire questions on victim
reactions 21 mandates a different conclusion regarding the
admissibility of Dr. Tambling’s testimony.

                     Legal and Factual Sufficiency

     The appellant next claims that the evidence is legally and
factually insufficient to support the members’ guilty findings,
specifically that the Government did not prove the element of
unlawful force beyond a reasonable doubt.

     The test for legal sufficiency is whether, considering the
evidence in the light most favorable to the Government, any
rational trier of fact could have found the elements of the
offense beyond a reasonable doubt. United States v. Turner, 25

19
  We note the members acquitted the appellant of the only case-specific
conduct to which Dr. Tambling referred in her testimony: the allegation of
the appellant’s forcible penetration of JB’s mouth with his penis.
20
  All of the members indicated that they received some form of sexual assault
training within six months of the court-martial. Record at 220.
21
  During voir dire the members indicated that they held no preconceived
beliefs regarding victim response to trauma, generally, or sexual assault
trauma, specifically.
                                      7
M.J. 324, 325 (C.M.A. 1987); United States v. Reed, 51 M.J. 559,
561-62 (N.M.Crim.Ct.App. 1999), aff'd, 54 M.J. 37 (C.A.A.F.
2000); see also Art. 66(c), UCMJ. The test for factual
sufficiency is whether, after weighing all the evidence in the
record of trial and recognizing that we did not see or hear the
witnesses, this court is convinced of the appellant's guilt
beyond a reasonable doubt. Turner, 25 M.J. at 325; see also
Art. 66(c), UCMJ. Proof beyond a reasonable doubt does not mean
that the evidence must be free from conflict. United States v.
Goode, 54 M.J. 836, 841 (N.M.Ct.Crim.App. 2001). The fact
finder may believe one part of a witness’ testimony and
disbelieve another. Id. When weighing the credibility of a
witness, this court, like a fact finder at trial, examines
whether discrepancies in witness testimony resulted from an
innocent mistake, such as a lapse of memory, or a deliberate
lie. Id. at 844.

      Forcible rape under Article 120(a), UCMJ, is committed when
the accused (1) commits a sexual act upon another person by (2)
using unlawful force against that other person. MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 45. In this case,
“sexual act” means the penetration of JB’s vulva with the
appellant’s penis. “Unlawful force,” as the military judge
properly instructed, “means an act of force done without legal
justification or excuse.” 22 Finally, “force” means “the use of
such physical strength or violence as is sufficient to overcome,
restrain, or injure a person; or inflict physical harm
sufficient to coerce or compel submission by the alleged
victim.”

     Here, there was sufficient evidence on the record to prove
every element of rape beyond a reasonable doubt, including the
element of unlawful force. JB testified that the appellant
forcibly flipped her over, put his hand on her neck so that she
could not breathe, and then removed her pants, despite the fact
that she was telling him not to do so. She also testified that
the appellant penetrated her vagina with his penis while choking
her while she was saying “no.” The appellant’s admissions to
investigators that he pulled JB’s hair and put his hand on her
throat corroborate her testimony on the issue of force.

     After carefully reviewing the record of trial and
considering the evidence in the light most favorable to the
prosecution, we are convinced that a reasonable fact finder
could have found all the essential elements beyond a reasonable

22
     Record at 692.
                                 8
doubt. Furthermore, after weighing all the evidence in the
record of trial and having made allowances for not having
personally observed the witnesses, we are convinced beyond a
reasonable doubt of the appellant’s guilt.

                           Conclusion

     Accordingly, the findings and the sentence as approved by
the CA are affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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