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

                                 Before
             R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                       JEREMY R. GREEN
       AVIATION ELECTRICIAN'S MATE AIRMAN (E-3), U.S. NAVY

                           NMCCA 201300276
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 7 March 2013.
Military Judge: CAPT Kevin O'Neil, JAGC, USN.
Convening Authority: Commanding Officer, Naval Air Station,
Lemoore, CA.
Staff Judge Advocate's Recommendation: LT D.A. Christenson,
JAGC, USN.
For Appellant: LT Carrie Theis, JAGC, USN.
For Appellee: Maj David Roberts, USMC.

                              31 July 2014

     ---------------------------------------------------
                     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.

WARD, Senior Judge:

     A military judge, sitting as a general court-martial,
convicted the appellant pursuant to his pleas of wrongful
appropriation and communicating indecent language in violation
of Articles 121 and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 921 and 934. The military judge also convicted the
appellant, contrary to his pleas, of one specification of rape
of a child, two specifications of aggravated sexual contact with
a child, and two specifications of sodomy with a child in
violation of Articles 120 and 125, UCMJ, 10 U.S.C. §§ 920 and
934. The military judge sentenced the appellant to confinement
for 140 months, reduction to pay grade E-1 and a dishonorable
discharge. The convening authority approved the sentence as
adjudged and, in accordance with the pretrial agreement, waived
automatic forfeitures of pay and allowances for the benefit of
the appellant’s family members. With the exception of the
punitive discharge, the convening authority ordered the sentence
executed. 1

     On appeal, the appellant raises the following assignments
of error:

     1) That the military judge erred in denying the appellant’s
motion to suppress his confession;

      2) That the military judge erred in his special findings
under RULE FOR COURTS-MARTIAL 918(b), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2008 ed.);

     3) That the appellant’s convictions for rape of a child,
aggravated sexual contact of a child and sodomy with a child are
legally and factually insufficient;

     4) That the appellant’s guilty plea to wrongful
appropriation is improvident; and

     5) That the appellant’s guilty plea to communicating
indecent language is improvident. 2

     Having carefully considered the record of trial, the
parties’ pleadings and oral argument, we conclude that the
findings and sentence are correct in law and fact and no error
materially prejudicial to a substantial right of the appellant
occurred. Arts. 59(a) and 66(c), UCMJ.




1
  We note that the Convening Authority’s action, General Court-Martial Order
No. 1-13, incorrectly lists the finding for Charge I, Specification 4 as
guilty when in fact the military judge found the appellant not guilty of this
offense. Record at 272. We will order corrective action in our decretal
paragraph.
2
  We have reviewed assignments of error 2 – 5 and find them without merit.
United States v. Clifton, 35 M.J. 79, 81-82 (C.M.A. 1992).
                                      2
                            Factual Background

     The charges and specifications stem from a pattern of
sexual abuse committed by the appellant against his then two-
and-a-half year old daughter and his infant son. This occurred
between May and July 2011, shortly before the appellant deployed
in late July 2011. It was also during this time that the
appellant’s wife noticed a change in the appellant’s behavior as
he displayed a new interest in caring for his children. With a
toddler and a newborn, she welcomed her husband’s involvement
and sharing of parental care. Unbeknownst to her, it was during
this period that the appellant sexually abused their children
upstairs in their home after giving one a bath or changing a
diaper. Each time he did this his wife would either be in the
shower, taking a nap, or downstairs with the other child.

     After the appellant began taking on more responsibilities
for the children, his wife began noticing some changes in her
daughter. She noticed her daughter having more frequent
urination accidents, something that surprised her since the
daughter had been potty-trained by that time for several months.

     As the appellant prepared to deploy in late July, his wife
began to suspect him of having an affair. After he deployed,
she left him and took both children back to her hometown. Using
his password, she hacked into her husband’s email account and
discovered links to a Facebook profile name of “Bobby Warren”.
When she looked up the profile of “Bobby Warren”, she discovered
her husband’s picture and several disturbing posted comments.
One post in particular concerned her because “Bobby Warren”
seemingly expressed an interest in incest. Alarmed, she
contacted a family friend and local police for assistance.
Ultimately, she reported her suspicions to agents from the Naval
Criminal Investigative Service (NCIS).

     Soon thereafter NCIS agents initiated an investigation.
With only the generalized information provided by the
appellant’s wife, consisting primarily of the “Bobby Warren”
Facebook posts, agents had little to go on before they
interrogated the appellant. 3 However, in a series of interviews
with NCIS investigators, the appellant described in detail
numerous instances of sexually abusing his children.


3
  A forensic examination of the daughter found no physical evidence of sexual
trauma. Appellate Exhibit XXI. Additionally, a forensic interview of her
was inconclusive. AE XXIII.


                                      3
     Prior to trial, the appellant sought to suppress his
confession arguing that the Government lacked sufficient
independent corroboration. After taking testimony from several
witnesses and reviewing documentary exhibits, the military judge
denied the motion after finding that four items of evidence
proffered by the Government adequately corroborated the
appellant’s confession. 4

                Corroboration of the Appellant’s Confession

     In his ruling, the military judge relied on the following
to conclude that the appellant’s confession was sufficiently
corroborated:

        1) The appellant’s uncharacteristic interest in bathing his
        daughter and son as described by the appellant’s wife;

        2) Independent evidence that the appellant accessed the
        website “literotica”;

        3) Independent evidence of the appellant’s postings under
        the Facebook pseudonym “Bobby Warren”; and

        4) Evidence that the daughter’s regression in potty
        training could be caused by sexual abuse. 5

Appellate Exhibit XVI at 9-10.

     We review a military judge’s ruling that a confession is
sufficiently corroborated for an abuse of discretion. United
States v. Seay, 60 M.J. 73, 77 (C.A.A.F. 2004). “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). This standard
envisions that “a judge has a range of choices and will not be
reversed so long as the decision remains within that range.”
Id. (citations and internal quotation marks omitted).


4
    AE XVI.
5
  Contrary to the appellant’s argument, we find no clear error in the military
judge’s factual findings as to this evidence and we find no merit to the
appellant’s argument that the military judge improperly combined this item of
evidence with other independent evidence to conclude that the appellant’s
confession was adequately corroborated. Appellant’s Brief of 18 Oct 2013 at
32.


                                      4
     Originally from common law, the independent corroboration
rule acted as a bulwark against the danger of false or coerced
confessions. Opper v. United States, 348 U.S. 84, 89-90 (1954).
In Opper, the Supreme Court extended the common law
corroboration requirement beyond confessions to “admissions of
essential facts or elements of the crime, subsequent to the
crime” even where those admissions were intended to be
exculpatory in nature. Opper, 348 U.S. at 90-92. The only
exception, the Court found, was statements “immaterial as to
guilt or innocence.” Id. at 91.

     As to the relationship between corroboration and the
admissions or confessions, the Court held that the Government
“must introduce substantial independent evidence which would
tend to establish the trustworthiness of the statement. . . .
[but that] [i]t is sufficient if the corroboration supports the
essential facts admitted sufficiently to justify a jury
inference of their truth.” Id. at 93. 6 That same year the
Supreme Court held that the “substantial independent evidence”
can establish the trustworthiness of the statement even if it
only relates to one element of the crime, or if it simply
bolsters the trustworthiness of the confession alone without
relating to any element of the confessed to crime. See Smith v.
United States, 348 U.S. 147, 156 (1954) (“[O]ne available mode
of corroboration is for the independent evidence to bolster the
confession itself and thereby prove the offense ‘through’ the
statements of the accused.” (Citation omitted)).

      The military rule on corroboration has long followed the
same non-corpus delicti approach embraced in Opper. 7 The current
rule, MILITARY RULE OF EVIDENCE 304(g), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.) provides that:




6
  In Opper, the Supreme Court rejected the “corpus delicti” rule previously
adopted in some federal and state courts whereby a suspect’s confession must
be corroborated by facts that establish the corpus or the entirety of the
crime.
7
  Compare MANUAL FOR COURTS-MARTIAL, App. 22, at A22-13 (2012 ed.) with MANUAL FOR
COURTS-MARTIAL, UNITED STATES, 1951, ¶ 140a, at 251-52. Our superior court has
long embraced the non-corpus delicti rule as well. See, e.g., United States
v. Maio, 34 M.J. 215, 218 (C.M.A. 1992) (explicitly rejecting the corpus
delicti rule, instead relying on the trustworthiness of the confession);
United States v. Rounds, 30 M.J. 76, 80 (C.M.A. 1990) (finding that
independent proof of each element not required, independent evidence must
only raise inference of truth as to essential facts stated in confession).


                                         5
        An admission or a confession of the accused may be
        considered as evidence against the accused on the question
        of guilt or innocence only if independent evidence, either
        direct or circumstantial, has been introduced that
        corroborates the essential facts admitted to justify
        sufficiently an inference of their truth.

     The quantum of independent evidence necessary to
corroborate a confession is “very low” as it “must raise only an
inference of truth as to the essential facts admitted.” Seay,
60 M.J. at 79-80.

     We now turn to the four items of evidence cited by the
military judge as sufficient corroboration under MIL. R. EVID.
304(g).

        1. The appellant’s uncharacteristic interest in bathing his
        children

     The appellant first takes issue with the military judge’s
finding that the appellant’s “uncharacteristic” 8 interest in
bathing his children served as independent evidence
corroborating the truthfulness of his confession. Likening his
case to United States v. Faciane, 40 M.J. 399 (C.M.A. 1994), the
appellant argues that normal parental access even when combined
with bizarre behavior by a child is insufficient to corroborate
a father’s confession to acts of child sexual abuse.
Appellant’s Brief of 18 Oct 2013 at 16-17.

     As the appellant correctly notes, our superior court held
in Faciane that a father’s exclusive visitation was insufficient
to corroborate his later confession to acts of molestation.
However, the appellant’s behavior as described by his wife went
well beyond what was at issue in Faciane. Here, the military
judge focused more so on the uncharacteristic interest the
appellant displayed in bathing his daughter, something his wife
noticed at the time. Despite his sudden willingness to bathe
his daughter and ready her for bed, as many as four to five
nights a week, the appellant’s wife testified that the appellant
still remained largely uninterested in any other parental
responsibilities or care. Record at 40-43; 166-67.
Furthermore, the appellant admitted during his interrogation
that he always committed these acts on his daughter in her room



8
    AE XVI at 7.


                                   6
following her bath while his wife was either in the shower or
downstairs with their son. Prosecution Exhibits 7 and 9.

     The nature of this interaction as described during the
appellant’s confession coincides with the uncharacteristic
interest the appellant displayed with his daughter as described
by his wife. Like the military judge, we find that this
specific access, combined with the uncharacteristic interest
displayed by the appellant, corroborated some of the essential
facts of his confession. 9

      2. Independent evidence that the appellant accessed the
      website “literotica”

     During his first interrogation, 10 the appellant described
how he first sexually abused his daughter after reading stories
of incest on the website “literotica” and becoming curious. PE
7. An hour later into the interrogation, he recounted how after
reading these stories online from his smart phone he thought
about creating his own story. Id. Near the end of the
interrogation that day, he referenced the website again,
commenting that the stories were “pretty explicit” and
ultimately led him to sexually abusing his children. Id.

     The following day, NCIS agents again interrogated the
appellant concerning the details he previously provided. The
appellant again explained that after reading the material on
this website, and then bathing his daughter, “something
clicked.” PE 9.

9
  The appellant also takes issue with the military judge’s finding that “[i]n
May 2011, the [appellant] extended his assistance to bathing his son.” AE
XVI at 4. The appellant’s wife testified that during this time of displaying
an interest in bathing her daughter, the appellant would also offer to watch
her son while she took a nap. Record at 42. As the appellant correctly
notes, his wife did not testify that the appellant similarly took his son
upstairs to bathe him. We agree that this portion of the military judge’s
finding was clearly erroneous as it was unsupported by the record. However,
as described below, we conclude that the balance of the remaining
corroborative facts as cited by the military judge “tend[ed] to establish the
trustworthiness” of the appellant’s statements in his confession concerning
both children. Opper, 348 U.S. at 93; see also Wong Sun v. United States,
371 U.S. 471, 489 (1963) (holding that “extrinsic proof” is sufficient if it
“‘merely fortifies the truth of the confession, without independently
establishing the crime charged.’” (quoting Smith, 348 U.S. at 156)).
10
  The appellant returned from deployment in late February 2012. NCIS agents
interrogated him on 6 and 7 March 2012, and again on 2 April 2012. PE 4-7, 9
and 10.


                                      7
     On appeal, the appellant argues first that this website is
not an essential fact to his confession. Alternatively, he
argues that it is too attenuated since the forensic evidence
only indicates that he visited the website in March 2012,
approximately eight months after his offenses. We disagree with
both contentions.

     As to his first contention, no one was aware of the
website’s existence until he volunteered the name. Considering
that, in his own words, this website and its content “led” to
his crimes, we reject the notion that this website and the role
it played are not essential facts of his confession. Were we to
accept the premise to the appellant’s argument, then independent
evidence of confessed facts falling short of an element, such as
motive, access, and opportunity, could never corroborate a
confession – a premise rejected by the Supreme Court sixty years
ago in Opper and Smith. 11 We decline to adopt this repackaging
of the corpus delicti rule.

     The appellant’s second argument focuses on the lack of
temporal proximity between the forensic evidence recovered from
his phone and the facts of his confession. Even with the lack
of proximity, at a basic level confirmation of this website and
filename suggestive of incest creates some inference of truth to
these related facts in his confession. Lack of temporal
proximity may influence the weight to be given, but it does not
exclude this fact as irrelevant as the appellant argues. To the
contrary, we find it is a factor in evaluating the inferential
weight to this evidence. See United States v. Cravens, 56 M.J.
370, 376 (C.A.A.F. 2002) (finding scientific test establishing
drug use at some point within a four to five month period
preceding admitted use sufficiently “proximate in time” to
corroborate admitted use); United States v. Hall, 50 M.J. 247,
252 (C.A.A.F. 1999) (finding evidence of drug use occurring
three months after confessed use was still corroborative of
confession).

3. Independent evidence of the appellant’s postings under the
Facebook pseudonym “Bobby Warren”

     At trial, the parties stipulated that under the Facebook
pseudonym “Bobby Warren” the appellant posted the following

11
  See also United States v. Baldwin, 54 M.J. 464, 466 (C.A.A.F. 2001)
(finding father’s unexplained presence in daughter’s bedroom and visit to the
chaplain two days later were corroborative of essential facts to confessed
sexual abuse); Maio, 34 M.J. at 219 (finding access to drugs during time in
question was corroborative of confessed drug use).
                                      8
comments:

     “I am feeling very horny right about now. Could use some
     young pink p****. mmmm” posted 3 February 2011; and

     “I WANT SOME P****. SOME YOUNG JUICY P****” posted on 4
     July 2011.

PE 1 at 2. During the motion hearing and at trial, the
Government introduced additional evidence that “Bobby Warren”
also posted the following comment on 4 July 2011: “does anyone
on here like incest?” PE 2 at 5. The military judge concluded
that the two comments posted on 4 July 2011 “expresses an
implied desire for sexual contact with young females” and
therefore “in combination with the [other corroborative
evidence] support[s] an even stronger inference of truth to the
[appellant’s] admissions.” AE XVI at 8-9 (footnote omitted).

     The appellant challenges the military judge’s above
conclusion on three bases: 1) that under MIL. R. EVID. 304(g)
these Facebook posts amount to separate admissions that
themselves require corroboration and therefore cannot be used to
corroborate his confession; 2) that these comments are
inadmissible under MIL. R. EVID. 304(g) because they do not amount
to essential facts of his confession; and 3) that these comments
are inadmissible under MIL. R. EVID. 404(b). 12

     MIL. R. EVID. 304(g) provides in pertinent part: “Other
uncorroborated confessions or admissions of the accused that
would themselves require corroboration may not be used to supply
this independent evidence.” Subparagraph (c)(2) of the rule
defines an admission as “a self-incriminating statement falling
short of an acknowledgement of guilt, even if it was intended by
its maker to be exculpatory.” This language tracks the Opper
holding extending the corroboration requirement to admissions
falling short of a full confession. 13




12
  Because we find no merit in these latter two arguments, we address only the
first.
13
  “We think that an accused’s admissions of essential facts or elements of
the crime, subsequent to the crime, are of the same character as confessions
and that corroboration should be required.” Opper, 348 U.S. at 90 (citations
omitted).


                                      9
     More importantly, however, Opper only envisions statements
made by an accused while under suspicion of the confessed to
offense. 14 We find no such circumstances here. The appellant
posted these comments months before anyone suspected him of any
offense, and we find no circumstances of police coercion or
other dangers of false confession present. 15 Moreover, nowhere
in these posts is there an “admission of one of the formal
‘elements’ . . . or of a fact subsidiary to the proof of [an]
‘element[]’” to the confessed crime. Smith, 348 U.S. at 155.
We find therefore that these posts were available as independent
corroboration under MIL. R. EVID. 304(g) and Opper.

                                 Conclusion

     Consequently, we find no error by the military judge in
concluding that the aforementioned independent evidence
sufficiently corroborated the appellant’s confession because it
“fortif[ied] the truth of the confession, [despite not]
independently establishing the crime charged.” Wong Sun, 371
U.S. at 189 (citation, internal quotation marks and footnote
omitted).

       The supplemental court-martial order will reflect a
finding of Not Guilty for Charge I, Specification 4. The
findings and sentence as approved by the convening authority and
corrected herein are affirmed.

      Senior Judge MCFARLANE and Judge MCDONALD concur.

                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court


14
  “We conclude that exculpatory statements, however, may not differ from
other admissions of incriminating facts. Given when the accused is under
suspicion, they become questionable just as testimony by witnesses to other
extrajudicial statements of the accused.” Id. at 92 (emphasis added).
15
  Based on his review of the appellant’s confession and his own forensic
evaluation, Dr. Rex Frank, a forensic psychologist retained by the defense,
found no evidence of coercion by NCIS interrogators and concluded that
“[d]ata reviewed did not support the elicitation of a false internalized or
false compliant confession . . . in response to [the appellant’s]
interrogation by NCIS Agents [however] [t]he evaluation did not exclude the
possibility of a voluntary false confession.” Defense Exhibit A at 27.
                                     10
