UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BURTON, RODRIGUEZ, and FLEMING
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Specialist JOSHUA D. HALL
United States Army, Appellant

ARMY 20180307

Headquarters, 82d Airborne Division
Fansu Ku, Military Judge
Colonel Travis L. Rogers, Staff Judge Advocate

For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Kyle C. Sprague, JA;
Captain Alexander N. Hess, JA (on brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Hannah E. Kaufman, JA; Captain Anthony A. Contrada, JA (on
brief).

20 February 2020

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.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

Appellant argues the military judge erred by admitting evidence under Military
Rules of Evidence [Mil. R. Evid.] 404(b) and 403.! For the reasons set forth below,
we disagree.”

 

1 A military judge sitting as a general court-martial convicted appellant, contrary to
his pleas, of one specification of sexual abuse of a child, in violation of Article
120b, Uniform Code of Military Justice [UCMJ]; 10 U.S.C. § 920b. The military
judge sentenced appellant to a bad-conduct discharge, forty-eight months of
confinement, and reduction to the grade of E-1. The convening authority approved

(continued .. .)
HALL-ARMY 20180307
BACKGROUND

Perhaps appellant would have never faced the consequences of his sexual
abuse of a child had he not chosen to engage in a frank conversation with his
barracks roommate, then-Private First Class (PFC) NL. During this conversation,
NL, who worked with appellant and considered him his friend, heard appellant state
he “molested” his foster sister when he was twelve years-old. Later in the same
conversation, NL heard appellant say that approximately two years earlier, in 2014,
he also “molested” his ex-girlfriend’s eight year-old daughter.

Startled and troubled by appellant’s comments, NL eventually spoke with his
platoon sergeant about appellant’s statements. The platoon sergeant reported the
matter to the command. A few months later, a law enforcement investigation led to
the identification of Sergeant (SGT) JW as appellant’s ex-girlfriend in 2014, and her
daughter, JW, as the victim of appellant’s sexual abuse. The investigation further
revealed that appellant also told SGT JW and another of his friends, Specialist (SPC)
RS, that he molested his foster sister when he was a child. Appellant was

 

(. .. continued)
the findings and sentence as adjudged. Appellant’s case is now pending review
before this Court pursuant to Article 66, UMCJ.

2 Appellant also raised as an assignment of error that he was denied his due process
right to speedy post-trial review by a post-trial delay of 218 days. We considered the
four factors set forth in Barker v. Wingo, 407 U.S. 514, 530-34 (1972), and find
appellant has not satisfied the fourth prong of demonstrating prejudice. Accordingly
we grant no relief.

We have also given full and fair consideration to the matters raised personally by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and
find they merit neither discussion nor relief.

We briefly note that one of appellant’s Grostefon matters alleges his trial defense
counsel were ineffective because they failed to present evidence of appellant’s alibi
for the time period in which he was alleged to have sexually abused the child victim.
After reviewing the entire record of trial, we find appellant has failed to establish
that his trial defense counsel’s conduct was deficient or that he was prejudiced by the
claimed deficiency. Strickland v. Washington, 466 U.S. 668, 687 (1984). We find
appellant’s claimed alibi not credible and counsels’ decision not to present it fits
within the wide range of reasonable professional assistance. See, e.g., United States
vy. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at 687).
HALL-ARMY 20180307

subsequently charged with sexually abusing JW by touching her genitalia with his
fingers.

Pre-trial Military Rule of Evidence 404(b) Ruling

Prior to trial, the government provided the defense with notice of its intent to
admit appellant’s statements under Mil. R. Evid 404(b).? The military judge ruled
the evidence was inadmissible under Mil. R. Evid. 404(b) due to insufficient
evidence about the alleged molestation of appellant’s foster sister, such as what acts
constituted the alleged molestation, the foster sister’s identity, or when and where
the alleged molestation occurred.

On the eve of trial, the government requested the military judge reconsider
her prior ruling.* The government argued appellant’s comments about molesting his
foster sister lent “credence to [appellant’s] intent” in abusing JW, and appellant’s
“consciousness of guilt at the time that he was associating his behavior with [JW]
with what he did to his foster sister.” The government also argued, given the
defense’s “intent to attack” NL as an unreliable witness who was unable to “perceive
reality due to mental health issues,” that the evidence of the disclosure of
appellant’s comments about molesting his foster sister “to other witnesses” could be
used to negate “any inference that [NL] was mistaken in his understanding” about
what he heard appellant say.

The military judge, again, rejected the government’s efforts to introduce
appellant’s statements about molesting his foster sister under Mil. R. Evid. 404(b).
However, the military judge issued a conditional ruling holding the evidence that

 

3 Pursuant to Mil. R. Evid. 404(b), “Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” However, “[t]his
evidence may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Jd. This list of potential Mil. R. Evid. 404(b) non-propensity
purposes “is illustrative, not exhaustive.” United States v. Ferguson, 28 M.J. 104,
108 (C.M.A. 1989).

4 The government also sought to introduce this evidence under Mil. R. Evid. 414,
which provides that, “In a court-martial proceeding in which an accused is charged
with an act of child molestation, the military judge may admit evidence that the
accused committed any other offense of child molestation. The evidence may be
considered on any matter to which it is relevant.” The military judge denied this
motion for the similar reasons as provided in her Mil. R. Evid. 404(b) ruling.
HALL-ARMY 20180307

appellant made these comments to other witnesses could potentially be admitted for
the limited purpose of rehabilitating NL’s credibility contingent on the defense
attacking NL’s lack of perception of reality, which caused him to mishear
appellant’s statements. In her written ruling, the military judge stated “[a]ny such
evidence will only be considered for the sole purpose of supporting [NL’s]
credibility during merits regarding his conversation with [appellant] and what he
heard. This Court will not consider the evidence for any other purpose.” (emphasis
added). The Defense did not object to the military judge’s new ruling allowing the
government to introduce the evidence contingent upon the defense “open[ing] the
door.”

Cross-Examination of NL at Trial

At trial, NL testified appellant told him that two years earlier he had molested
the daughter of his then-girlfriend. During cross-examination of NL, the defense
elicited testimony from NL that the day this conversation occurred was an
“emotional” day for him because of an incident at the range, and that he was later
separated from the Army for medical reasons related to what occurred at the range.
NL admitted he saw “some folks for a while” to get “inpatient” help. NL stated that
his conversation with appellant “didn’t make sense,” and he was “confused” about
what he heard from appellant.

At the conclusion of NL’s cross-examination, the government argued the
defense had “opened the door” regarding NL’s “perception” by mentioning “that
[NL] saw folks and that he was confused given the circumstances,” and “he had
medical issues” for which he was discharged. The defense replied that defense’s
questions were narrow in scope and had not inquired about a “long-term condition
that would affect [NL’s] memory.” The military judge disagreed with defense
counsel, ruling as follows:

Well, Defense, I did tell you that if you . . . questioned
about in terms of [NL’s] emotional stability, that door will
be opened, but I also mentioned that the only — I’m
limiting it — it’s very limited in how I’m considering that
information. It’s only to support [NL’s] credibility.

(emphasis added).

The military judge then permitted the government to elicit from NL testimony
concerning appellant’s comment to NL that he molested his foster sister. After NL
testified, the government elicited similar testimony from SGT JW and SPC RS, for
the same limited purpose.
HALL-ARMY 20180307
LAW AND DISCUSSION
A. Military Rule of Evidence 404(b)

Appellant argues the military judge erred in admitting his statement that he
molested his foster sister under Mil. R. Evid. 404(b). Further, appellant argues the
military judge erred in failing to sufficiently conduct a Mil. R. Evid. 403 balancing
test under United States v. Reynolds, 29 M.J. 105 (C.M.A. 1989), and thus, we
should accord her evidentiary ruling less deference than we otherwise would. See
United States v. Berry, 61 M.J. 91, 96 (C.A.A.F. 2005). Appellant states that the
“highly prejudicial nature of [appellant’s statement he molested his foster sister] far
outweighed any probative value regarding [NL’s] credibility,” and the government
“cannot show that the erroneous admission of this highly prejudicial evidence was
harmless.” We disagree and find the military judge did not err, and even presuming
error, appellant was not prejudiced.

This court reviews a military judge’s ruling to admit evidence for abuse of
discretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010) (citation
omitted). Our Superior Court, in Reynolds, established a three-part test for the
admissibility of Mil. R. Evid. 404(b) evidence. 29 M.J. at 109. Other crimes,
wrongs, or acts may be admitted if the evidence: (1) reasonably supports a finding
that appellant committed prior crimes, wrongs or acts; (2) makes a fact of
consequence more or less probable; and (3) possesses probative value that is not
substantially outweighed by the danger of unfair prejudice. Jd. (citations and
quotation marks omitted). “Where a military judge properly conducts the balancing
test under Mil. R. Evid. 403, we will not overturn his decision unless there is a clear
abuse of discretion.” United States v. Ruppel, 49 M.J. 247, 250 (C.A.A.F. 1998)
(citations omitted).

Our review of the record reveals that the military judge did not admit
appellant’s statements that he molested his foster sister into evidence under Mil. R.
Evid. 404(b). Using a baseball analogy, the government did not even make it to first
or second base in its evidentiary proffer under Mil. R. Evid. 404(b), much less third
base, to cause need for the military judge to conduct a full analysis under Reynolds.
The military judge’s written ruling deeming this evidence inadmissible under Mil. R.
Evid. 404(b) is clear on this point:

“While the government proffered several non-propensity
purposes under [Mil. R. Evid.] 404(b), there is (sic) still
no facts about what the “molestation” is. Without facts
about what [appellant] actually did to/with his unnamed
foster sister, this court cannot determine whether those
acts make his alleged acts against [JW] more or less
HALL—ARMY 20180307

probable because this court does not know what the
uncharged crime, wrong, or act is.”

Accordingly, the military judge was not required to conduct a Mil. R. Evid.
403 balancing test under the third prong of Reynolds because she found that the
government’s proffer of this evidence for non-propensity purposes under Mil. R.
Evid. 404(b) failed to satisfy the first two Reynolds prongs.

Although not allowing the evidence under Mil. R. Evid. 404(b), the military
judge ruled it was admissible for the narrow, non-substantive purpose of permitting
the government to rehabilitate NL’s credibility, depending on the defense’s tactics at
trial. See generally Mil. R. Evid. 105 (evidence can be admitted for one purpose and
not another). Thus, the correct lens through which to analyze the military judge’s
evidentiary ruling is contained in Mil. R. Evid. 401, not Mil. R. Evid. 404(b). See,
e.g., United States v. Baumann, 54 M.J. 100, 104 (C.A.A.F. 2000) (holding Mil. R.
Evid. 404(b) not applicable when the evidence of appellant’s uncharged misconduct
was ultimately offered to show the credibility of a witness).

B. Military Rule of Evidence 401

Turning to Mil. R. Evid. 401, evidence must be logically relevant to a fact of
consequence in the case by making that fact “more probable or less probable.”
United States v. Staton, 69 M.J. 228, 230-31 (C.A.A.F. 2010). “Relevancy has two
components: (1) probative value, the relationship between the evidence and the
proposition it is offered to prove; and (2) materiality, the relationship between the
proposition the evidence is offered to prove and the facts at issue in the case.”
United States v. James, 63 M.J. 217, 221 (C.A.A.F. 2006). Although the relevance
standard is a low one, there must be “a real and direct nexus” between the proffered
evidence and a fact or issue in the case. United States v. Sullivan, 70 M.J. 110, 115
(C.A.A.F. 2011).

Analyzing the challenged testimony under Mil. R. Evid. 401, we find that
NL’s ability to perceive reality and reliably relay what he heard appellant say to him
about molesting his ex-girlfriend’s daughter was of material importance and at issue
in this case. Once defense attacked NL’s lack of perception, appellant’s statement to
NL that he also molested his foster sister became logically relevant because it tended
to corroborate NL’s credibility. If other witnesses, at different times, also heard
appellant say that he molested his foster sister, NL’s credibility in accurately
describing what he heard from appellant regarding the charged offense would be
strengthened.

Relevance, however, is not the end of the inquiry in determining whether
evidence may be admissible at trial. Military Rule of Evidence 403 provides that
“Ta]lthough relevant, evidence may be excluded if its probative value is substantially
HALL-ARMY 20180307

outweighed by the danger of unfair prejudice... .” In determining unfair prejudice,
we look to the risk that the evidence in question, despite its probative value, might
be used improperly, or whether “some concededly relevant evidence [might] lure the
factfinder into declaring guilt on a ground different from proof specific to the
offense charged.” United States v. Collier, 67 M.J. 347, 354 (C.A.A.F.

2009) (quoting Old Chief v. United States, 519 U.S. 172, 180, (1997)) (internal
quotation marks and emphasis omitted).

At trial, after the military judge ruled the testimony was admissible for a
limited purpose, appellant did not specifically raise a Mil. R. Evid. 403 objection.
Arguably, the defense maintained its original Mil. R. Evid. 404(b) objection by
disagreeing with the government’s assertion that the defense attacked NL’s lack of
perception during cross-examination. If so, then defense counsel also arguably
maintained the accompanying Mil. R. Evid. 403 objection under Reynolds.”
However, we need not decide whether appellant waived or forfeited a Mil. R. Evid.
403 objection because we are able to conduct a de novo review of the challenged
evidence under Mil. R. Evid. 403. See UCMJ art. 66(c).

In our de novo review, we note the military judge stated in her written ruling
and on the record that she was only considering the challenged testimony for the
limited purpose of supporting NL’s credibility. Given that this was a military judge
alone trial, we are reminded that the “military judge is presumed to know the law
and apply it correctly.” United States v. Robbins, 52 M.J. 455, 458 (C.A.A.F. 2000).
Absent evidence to the contrary, we are confident the military judge as factfinder
only considered this evidence for the lawful limited purpose of supporting NL’s
credibility, and not unlawfully as evidence under Mil. R. Evid. 404(b). Accordingly,
we find the probative value of this evidence was not substantially outweighed by a
danger of unfair prejudice. See Mil. R. Evid. 403.

However, even assuming error, we find the admission of this evidence did not
materially prejudice appellant’s substantial rights. First, the government case was
strong. We note that JW provided compelling testimony regarding the sexual abuse,
corroborated by SGT JW’s unequivocal testimony regarding appellant’s access to
JW. Second, the defense case was weak, consisting mainly of cross-examination of
the government’s witnesses. Faced with such credible testimony from JW and SGT
JW, and appellant’s own statements to NL confessing to the crime, the defense had a
strategic decision to make at trial: should they attack NL’s credibility and in turn
“open the door” to appellant’s other statements that he molested his foster sister?

 

> We pause to emphasize the importance for counsel at trial to clearly state all
grounds for an objection. Counsel should not rely on a trial or appellate judge to
connect the dots of their objections under the Military Rules of Evidence.
HALL-ARMY 20180307

The defense controlled the opening of this door and made the tactical decision to
open it by attacking NL’s perception of reality.

Lastly, the military judge emphasized several times, in her written ruling and
on the record, that she would not consider evidence that appellant molested his
foster sister for anything other than to support NL’s credibility. Accordingly, we are
satisfied beyond a reasonable doubt that any potential error in admitting this
evidence did not materially prejudice appellant’s substantial rights.°

CONCLUSION
On consideration of the entire record, we hold the findings of guilty and the
sentence as approved by the convening authority correct in law and fact.
Accordingly, the findings of guilty and the sentence are AFFIRMED.
Senior Judge BURTON and Judge FLEMING concur.

FOR THE COURT:

Mpbberkees—

MALCOLM H. SQUIRES, JR.
Clerk of Court

 

6 See, e.g., Baumann, 54 M.J. at 105 (holding no prejudice in admitting appellant’s
other uncharged sexual abuse of a child when the government presented an
overwhelming case, the defense case was weak, and the military judge gave
extensive instructions on the proper use of the evidence to show the credibility of a
witness after the defense suggested the witnesses had a motive to fabricate.).
