          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201600111
                         _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.

                           MYKAL L. EVANS
                Lance Corporal (E-3), U.S. Marine Corps
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

           Military Judge: Major Mark D. Sameit, USMC.
  Convening Authority: Commanding General, 3d Marine Aircraft
     Wing, Marine Corps Air Station Miramar, San Diego, CA .
     Staff Judge Advocate’s Recommendatio n: Colonel Daren K.
                         Margolin, USMC.
   For Appellant: Major Benjamin A. Robles, USMC; Lieutenant
               Commander Jeremy Wall, JAGC, USN.
 For Appellee: Lieutenant Megan Marinos, JAGC, USN; Lieutenant
                    Robert J. Miller, JAGC, USN.
                      _________________________

                       Decided 21 September 2017
                        _________________________

  Before G LASER -A LLEN , M ARKS , and W OODARD , Appellate Military
                                 Judges
                          _________________________

This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2
                        _________________________

   GLASER-ALLEN, Chief Judge:
   A general court-martial composed of members with enlisted
representation convicted the appellant, contrary to his plea, of abusive sexual
contact in violation of Article 120(d), Uniform Code of Military Justice
                     United States v. Evans, No. 201600111


(UCMJ), 10 U.S.C. § 920(d). The appellant was sentenced to six months’
confinement, reduction to pay grade E-1, and a bad-conduct discharge. The
convening authority (CA) approved the sentence as adjudged.
    The appellant raises three assignments of error (AOEs), one of which has
been resolved by our superior court.1 The remaining two AOEs are: (1) the
military judge erred in denying expert assistance to determine the
appellant’s susceptibility to rendering a false confession; and (2) the military
judge committed plain error by instructing the members not to consider
evidence of good military character when deliberating on the abusive sexual
contact charge.2 After carefully considering the pleadings and the record of
trial, we find no error materially prejudicial to the substantial rights of the
appellant and affirm the findings and sentence. Arts. 59(a) and 66(c), UCMJ.
                                 I. BACKGROUND
    The appellant and victim (Lance Corporal (LCpl) CLW) were both
members of Marine Air Support Squadron 3 aboard Camp Pendleton,
California. On 28 June 2014, the appellant, LCpl CLW, and other members of
their unit attended an off-base party. Everyone except for the designated
driver (DC) consumed alcohol at the party.
    After approximately two hours, LCpl CLW said she was not feeling well
and went to sleep on the rear bench seat of the van the group took to the
party. Several hours later, DC drove the van back to his home and went
inside to sleep. He left the rest of the group, including the appellant and LCpl
CLW, sleeping in the van.
    LCpl CLW later awoke with her clothing partially removed, the appellant
on top of her, his mouth on her breast, and his hand in her underwear. She
hit the appellant on the head to make him stop; he apologized and moved to
the floor of the van. LCpl CLW immediately exited the van, knocked on DC’s


   1 “THE MILITARY JUDGE IS REQUIRED TO ACCURATELY INSTRUCT THE
MEMBERS ON THE LAW. HERE, THE MILITARY JUDGE INSTRUCTED THE
MEMBERS ‘IF, BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU
ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF THE CRIME
CHARGED, YOU MUST FIND HIM GUILTY.’ THIS WAS PLAIN ERROR”
Appellant’s Brief of 21 Sep 2016 at 15-16. The Court of Appeals for the Armed Forces
(C.A.A.F.) found no error in the use of the same challenged instruction in United
States v. McClour, 76 M.J. 23 (C.A.A.F. 2017), and in accordance with that holding,
we summarily reject the appellant’s supplemental AOE here. United States v. Clifton,
35 M.J. 79 (C.M.A. 1992); see also United States v. Rendon, 75 M.J. 908, 916-17 (N-M.
Ct. Crim. App. 2016), rev. denied. 76 M.J. 128 (C.A.A.F. 2017).
   2 We have renumbered the appellant’s AOEs. AOE II is raised pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


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                       United States v. Evans, No. 201600111


window, and asked if she could come inside. He noticed she was upset and
gave her a place to sleep in the living room. Later that morning, LCpl CLW
texted another Marine in the group indicating she wanted the appellant to
leave because he had assaulted her the night before.
    During the resulting Naval Criminal Investigative Service (NCIS)
investigation, agents questioned the appellant. The NCIS interrogation
lasted approximately three hours. The questioning portion of the
interrogation lasted approximately one hour and twenty minutes, the
remainder of the time consisted of the appellant typing his confession. The
interrogation occurred during normal working hours, and the NCIS agents
did not raise their voices, threaten physical violence, or withhold food, water,
or other necessities.
    At trial, the defense called three witnesses, who all testified to the
appellant’s good military character. The military judge instructed the
members, without objection, that the good military character defense did not
apply to the abusive sexual contact charge, but only to the lesser included
offense (LIO) of assault consummated by a battery.
                                    II. DISCUSSION
A. Denial of expert assistance
    On 8 October 2015, the appellant filed a motion to compel the assistance
of a specific expert consultant in the field of forensic psychology to advise on
“false and coerced confessions . . . and sociology of suggestibility of
interrogation and interviewing procedures . . . to influence the accuracy of
suspects’ admissions.”3 The military judge denied the motion.4
   On 2 November 2015, the defense filed a second motion requesting
reconsideration of the military judge’s prior denial of the false confession
expert consultant. Trial defense counsel (TDC) claimed the military judge
erred in some of his findings of fact and misunderstood the defense team’s
access to their command’s highly qualified expert (HQE), and the help the
HQE could provide to prepare them for trial. On 4 November 2015, the
military judge heard the reconsideration motion and again denied the expert
consultant.
   Immediately following this ruling on the expert consultant, TDC verbally
requested the same expert be produced as an expert witness, which was
denied by the military judge via written ruling on 6 November 2015.5


   3   Appellate Exhibit (AE) VI at 1; Record at 45-48.
   4   Record at 62-65.
   5   Id. at 93; AE XXII.


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                      United States v. Evans, No. 201600111


Although the military judge denied the expert witness as unnecessary, he did
allow the defense “more leeway in the voir dire process to ask whether
members believe that people can’t give false confessions without physical
coercion or any sort of mental infirmity.”6 TDC were also permitted to
extensively cross-examine the NCIS agents on their interrogation practices,
though ultimately chose not to raise the issue of suggestive interviewing
techniques or voluntariness of the confession at trial.
    The military judge denied the defense motions with thorough analysis on
the record, later augmented by a written ruling.7 He concluded that the
appellant failed to show why false confession expert assistance was needed or
what that assistance would accomplish, as there was scant evidence that the
appellant’s confession to NCIS was false or coerced, that the appellant
suffered “from some abnormal emotional or psychological problem,” or that
the appellant had “a submissive personality so weak or disoriented as to
make [him] susceptible to make false or incriminatory statements.”8
    He further found that the NCIS agents videotaped the entire
interrogation, did not use unlawful coercive techniques, and did not continue
the interrogation for an unreasonable amount of time. He also noted that the
appellant provided details the NCIS agents did not have and failed to
disavow his statement after swearing to its truth.
   The military judge then concluded:
         The Court is left with [a] simple and initial denial of having
         memory of the events to a friend in a video of Lance Corporal
         Evans denying guilt followed up by him admitting to the
         elements of the charged offense and swearing that this is the
         truth that closely matches the alleged victim’s version of
         events. The Court is not aware of any case law that holds that
         this amount of evidence entitles the defense to a false
         confession expert as a matter of military due process.9
   The defense is entitled to an expert’s assistance upon demonstration of
necessity and a showing that “‘denial of expert assistance would result in a
fundamentally unfair trial.’” United States v. Bresnahan, 62 M.J. 137, 143
(C.A.A.F. 2005) (quoting United States v. Gunkle, 55 M.J. 26, 31 (C.A.A.F.
2001)). The appellant must prevail on both prongs by a “reasonable


   6   Record at 137; AE XXII at 11.
   7   Record at 87-92; AE XXII.
   8   Record at 88; AE XXII at 10-11.
   9   Record at 90; AE XXII.


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                      United States v. Evans, No. 201600111


probability.” Id. See also RULE FOR COURTS-MARTIAL (R.C.M.) 703 and
MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 702, MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.).
    The “necessity” standard has a three-part test under which the appellant
“must show (1) why the expert assistance is needed; (2) what the expert
assistance would accomplish for the accused; and (3) why the defense counsel
were unable to gather and present the evidence that the expert assistance
would be able to develop.” Bresnahan, 62 M.J. at 143 (footnote omitted). To
demonstrate necessity “an accused ‘must demonstrate something more than a
mere possibility of assistance from a requested expert[.]’” Gunkle, 55 M.J. at
31 (citations and internal quotation marks omitted).
    We review a military judge’s denial of expert assistance for abuse of
discretion. United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010).10 Here, we
concur with the military judge’s findings of fact and conclusions of law. The
defense failed to demonstrate both the necessity of the requested expert
assistance and that the absence of such assistance would result in a
fundamentally unfair trial.11 Further, the defense failed to demonstrate that
the expert witness’s testimony would assist the trier of fact to understand the
evidence or to understand a fact at issue. As a result, we find that the
military judge did not abuse his discretion.




    10 “An abuse of discretion occurs when the trial court’s findings of fact are clearly
erroneous or if the court’s decision is influenced by an erroneous view of the law.”
United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F 2008) (citation omitted). “The
abuse of discretion standard is a strict one, calling for more than a mere difference of
opinion. The challenged action 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)).
    11 We distinguish this case from United States v. Dougherty, No. 201300060, 2013
CCA LEXIS 1072 at *6, unpublished op. (N-M. Ct. Crim. App. 2013). While the cases
initially appear similar because both deal with false confession experts, here—like in
Bresnahan—the proposed expert was unable to provide a necessary link between the
personal characteristics most commonly associated with false confessions and the
appellant, resulting in the military judge’s denial of both an expert consultant and
expert witness. In Dougherty, the accused had previously retained an expert
consultant who had examined him, performed psychological testing, provided a
written report, and testified that the accused demonstrated several characteristics
that made him “very suggestible under pressure.” Id. at *13. However, on the
morning of trial, the new military judge denied the same expert consultant as an
expert witness due to a faulty MIL. R. EVID. 403 analysis.


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                         United States v. Evans, No. 201600111


B. Good military character evidence
   We review instructional errors de novo. United States v. Killion, 75 M.J.
209, 214 (C.A.A.F. 2016). Absent objection at trial, we review for plain error.
United States v. Czekala, 42 M.J. 168, 170 (C.A.A.F. 1995). “If instructional
error is found [when] there are constitutional dimensions at play, [the
appellant’s] claims ‘must be tested for prejudice under the standard of
harmless beyond a reasonable doubt.’” United States v. Wolford, 62 M.J. 418,
420 (C.A.A.F. 2006) (quoting United States v. Kreutzer, 61 M.J. 293, 298
(C.A.A.F. 2005)).
   The appellant contends, for the first time on appeal, that the military
judge erred by instructing the members that a good (or general) military
character defense applied solely to the LIO of assault consummated by a
battery under Article 128, UCMJ, and not the charged offense of abusive
sexual contact under Article 120, UCMJ.
    Before instructing the members on findings, the military judge asked,
“[d]efense, do you request the lesser included offense of assault and battery
be instructed upon?”12 TDC replied in the negative. The military judge then
explained, “[d]defense, if you request it not be instructed upon, I have to
instruct the members to disregard all the testimony you just gave on good
military character because it’s only relevant to the lesser included offense of
assault and battery.”13 TDC requested to consider their decision on the LIO
during a recess.
   When court resumed, TDC requested the instruction. The military judge
agreed, and the parties discussed the good military character instruction in
detail, where the military judge again explained that it was relevant only on
the assault and battery offense. Specifically, the military judge instructed,
without objection, “Good military character cannot be considered regarding
the greater offense of abusive sexual contact.”14
    Because the appellant did not request another instruction or otherwise
object to the instructions the military judge ultimately gave, this issue was
forfeited, and we review for plain error. United States v. Feliciano, 76 M.J.




    12 Record at 420. At trial, counsel repeatedly referred to “good” military

character, though the new MILITARY RULE OF EVIDENCE 404(a)(2)(A), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.) identifies such evidence as “general”
military character.
   13   Record at 420.
   14   Id. at 452; AE XLVI at 6.


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                       United States v. Evans, No. 201600111


237, 239-40 (C.A.A.F. 2017);15 see also United States v. Davis, 76 M.J. 224,
229 (C.A.A.F. 2017) (holding that failure to request a required instruction or
otherwise object to the final form of instructions constitutes forfeiture, and
reviewing courts will test for plain error).16
    “Under a plain error analysis, the accused has the burden of
demonstrating that: (1) there was error; (2) the error was plain or
obvious; and (3) the error materially prejudiced a substantial right of the
accused.” Davis, 76 M.J. at 230 (quoting United States v. Payne, 73 M.J. 19,
23 (C.A.A.F. 2014)). “[T]he failure to establish any one of the prongs is fatal
to a plain error claim.” United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F.
2006).
     We recognize that our superior court has emphasized the importance of
character evidence. United States v. Gagan, 43 M.J. 200, 202 (C.A.A.F. 1995)
(“[t]he power of character evidence cannot be underestimated.”) However,
MIL. R. EVID. 404(a)(2)(A) has recently changed; the modified rule reflects
presidential and congressional focus on military sexual offenses and their
shared view that a “good soldier” defense is inappropriate in such cases.17
   On 17 June 2015, the President signed Executive Order 13696, which
implemented a congressionally-directed amendment to MILITARY RULE OF
EVIDENCE (MIL. R. EVID.) 404(a). Leaving intact the general rule that
character evidence is inadmissible to prove that a person acted in conformity
with a character or trait, the amendment modified the exception of MIL. R.
EVID. 404(a)(2)(A) as follows:




     In United States v. Gladue the Court of Appeals for the Armed Forces clarified
    15

the meaning of the terms “waiver” and “forfeiture”:
         Waiver is different from forfeiture. Whereas forfeiture is the failure to
         make the timely assertion of a right, waiver is the intentional
         relinquishment or abandonment of a known right. The distinction
         between the terms is important. If an appellant has forfeited a right
         by failing to raise it at trial, we review for plain error. When, on the
         other hand, an appellant intentionally waives a known right at trial,
         it is extinguished and may not be raised on appeal.
Feliciano, 76 M.J. at 240 fn.2 (citing United States v. Gladue, 67 M.J. 311,
313 (C.A.A.F. 2009) (citations and internal quotation marks omitted)).
    16 “R.C.M. 920(f) uses the word ‘waiver,’ but it is clearly referring to ‘forfeiture.’
Forfeiture is the passive abandonment of a right by neglecting to preserve an
objection . . . .” Davis, 76 M.J. at 227 n.1.
    17 See Carl Levin and Howard P. “Buck” McKeon National Defense Authorization
act for Fiscal Year 2015, Pub. L. No. 113-291 § 536, 128 Stat. 3368 (2014).


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                    United States v. Evans, No. 201600111


            The accused may offer evidence of the accused’s pertinent
        trait and, if the evidence is admitted, the prosecution may offer
        evidence to rebut it. General military character is not a
        pertinent trait for the purposes of showing the probability of
        innocence of the accused for the following offenses under the
        UCMJ:
           (i) Articles 120-123a;
           (ii) Articles 125-127;
           (iii) Articles 129-132;
            (iv) Any other offense in which evidence of general military
        character of the accused is not relevant to any element of an
        offense for which the accused has been charged; or
            (v) An attempt or conspiracy to commit one of the above
        offenses.18
    Here, the appellant failed to meet his burden under the first prong of the
plain error test. We find the military judge correctly interpreted MIL. R. EVID.
404(a)(2)(A) and therefore did not err, let alone plainly err, by declining to
instruct the members that a good military character defense applies to the
offense of abusive sexual contact under Article 120, UCMJ.19
                                III. CONCLUSION
   The findings and the sentence as approved by the CA are affirmed.
   Senior Judge MARKS and Judge WOODARD concur.
                                         For the Court



                                         R.H. TROIDL
                                         Clerk of Court




   18 (Emphasis added). See also, United States v. Roberts, 75 M.J. 696, 698 (N-M.
Ct. Crim. App. 2016) (reviewing a writ petition on similar issue).
   19  See also, STEPHEN A. SALTZBURG, LEE D. SCHINASI, DAVID A. SCHLUETER &
VICTOR M. HANSEN, MILITARY RULES OF EVIDENCE MANUAL, § 404.02[2][b] (8th ed.
2015).


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