UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                       ALDYKIEWICZ, BROOKHART, and SALUSSOLIA
                                Appellate Military Judges

                               UNITED STATES, Appellee
                                            v.
                             Specialist JAMES R. BUTLER III
                              United States Army, Appellant

                                        ARMY 20180385

                          Headquarters, 7th Infantry Division
               Lanny J. Acosta, Jr. and Jennifer B. Green, Military Judges
                   Colonel Russell N. Parson, Staff Judge Advocate


For Appellant: Captain Steven J. Dray, JA; Matthew Flynn, Esquire (on brief);
Daniel Conway, Esquire.

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Craig J. Schapira, JA; Captain Christopher K. Wills, JA (on
brief).


                                           29 May 2020

                                   ----------------------------------
                                    MEMORANDUM OPINION
                                   ----------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

SALUSSOLIA, Judge:

      This case is now before us for review pursuant to Article 66, UCMJ. 1
Appellant alleges five errors, one of which merits discussion, but does not warrant

1
  A panel with enlisted members, sitting as a general court-martial, convicted
appellant, contrary to his pleas, of one specification of sexual assault, three
specifications of abusive sexual contact, and one specification of false official
statement in violation of Articles 120 and 107, Uniform Code of Military Justice, 10
U.S.C. §§ 920, 907 [UCMJ]. The convening authority approved the adjudged
sentence of a dishonorable discharge, confinement for three years, forfeiture of
$1,638.30 pay per month for thirty-six months, and reduction to the grade of E-1.

                                                                                (continued . . .)
BUTLER—ARMY 20180385

relief. Appellant asserts the military judge abused her discretion in admitting the
victim’s prior consistent statements pursuant to Military Rule of Evidence [Mil. R.
Evid.] 801(d)(1)(B)(ii). We agree that the military judge erred in her misapplication
of Mil. R. Evid. 801(d)(1)(B)(ii). Nonetheless, for the reasons set forth below we
find the military judge arrived at the correct result in admitting the victim’s prior
consistent statements, even if for the wrong reason. See United States v. Carista, 76
M.J. 511, 515 (Army Ct. Crim. App. 2017). Alternatively, if it was error to admit
the victim’s prior consistent statements, we find no material prejudice to appellant's
substantial rights.

                                  BACKGROUND

                                     The Offense

       Appellant’s convictions primarily stem from two incidents—one involving
Specialist (SPC) FC and the other involving HM. 2 The assigned error we discuss
pertains to the incident involving SPC FC while assigned at Joint Base Lewis-
McChord (JBLM).

       From April 2016 until December 2016, appellant and SPC FC socialized at
work and during off-duty hours. Although a few soldiers described SPC FC’s
behavior toward appellant as being flirtatious with sexual overtones, SPC FC denied
any such behavior, describing her relationship with appellant as nothing more than
“just coworkers and friends.”

       On the night of 29 December 2016, SPC FC and a fellow female soldier
consumed a few shots of alcohol before they left post and went to a dance club.
Upon arriving at the club, SPC FC greeted appellant and other soldiers she
recognized. Specialist FC drank more alcohol at the club and later could not recall
further interaction with appellant, to include dancing with him. Early the next
morning, SPC FC and the other female soldier left the club and returned to post.

       Upon SPC FC’s return to post, a male soldier observed her in an intoxicated
state. She did not know where her room was located, so he assisted her to her room
and remained there for approximately fifteen minutes. Upon leaving SPC FC in her


(. . . continued)
Rule for Courts-Martial [R.C.M.] 1003(b)(2) states that “a sentence to forfeiture
shall state the exact amount in whole dollars.” We correct the error in the amount of
the approved forfeiture in our decretal paragraph.
2
 Specialist FC held the rank of sergeant at the time of appellant’s trial. HM was on
active duty at the time of the incident holding the rank of private first class.



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room, the male soldier secured her door. Specialist FC exchanged text messages
with appellant and briefly spoke to him on the phone 3 before falling asleep.

       During the early morning of 30 December, SPC FC was awakened by
appellant knocking on her door. Wrapped in a blanket, she opened the door and let
him in. Upon entering the room, appellant noticed SPC FC appeared very
intoxicated. He observed her crawling on the floor and vomiting, prompting him to
ask whether she was okay. She replied that “she was good.” Assuming appellant
would let himself out, SPC FC went back to bed and fell asleep.

      When SPC FC awoke again, she found appellant lying on top of her
attempting to have sexual intercourse with her. SPC FC thought, “this can’t be
happening” and tried to close her legs. She moved her neck to prevent appellant
from kissing her. Appellant responded by telling her to “stop playing.” Despite
SPC FC’s struggles, appellant penetrated her vagina with his penis. Appellant
eventually stopped, got up and left the room. Specialist FC laid on her bed in a
described state of shock and fell back to sleep.

       At various times on 30 December, SPC FC told three soldiers—Specialists
Johnson, Martin, and Daniels—that appellant “raped” her. The same day, SPC FC
told a female noncommissioned officer, Sergeant (SGT) Bannister, about being
sexually assaulted by appellant. Sergeant Bannister encouraged SPC FC to report it
and took her to the hospital.

       Shortly thereafter, Army Criminal Investigation Command (CID) launched an
investigation that included interviewing appellant on two occasions. During the first
interview, appellant waived his rights and admitted going to SPC FC’s room after
returning from the club. Appellant claimed that SPC FC answered the door naked
and very intoxicated. Appellant said SPC FC vomited a few times and he tried to
give her water to drink. Appellant reported helping SPC FC into bed, laying down
next to her for about five minutes and then leaving the room. Appellant denied at
least five times that there was any sexual contact between SPC FC and him.

       Army CID conducted a second interview of appellant four days later.
Appellant again waived his rights and provided a statement changing his original
story. During this interview, appellant admitted to having sexual intercourse with
SPC FC, but claimed it was consensual. In this version, appellant stated that after
entering her room, he observed a heavily intoxicated SPC FC crawling on the floor


3
 After noting missed telephone calls from appellant, SPC FC called him back and
spoke to him for a little over a minute. She does not recall the content of their
conversation, but her messages did not convey an invitation for appellant to come to
her room. Instead, her messages indicated she would see him later that day.



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and vomiting. Appellant claimed he asked her if she was okay and she replied she
was good. Appellant stated they had sex for about five minutes before he decided to
stop, got out of bed, and left her room. Appellant claimed that SPC FC never said
no or pushed him away. Appellant said he believed SPC FC consented to sex
because she responded affirmatively when he asked her if she was okay after she
vomited.

                                       The Trial

       At trial, SPC FC testified on direct examination regarding the sexual assault.
On cross-examination, the defense counsel attacked SPC FC’s credibility,
challenging her motive for accusing appellant of sexual assault, memory of the
incident, and defense-perceived inconsistencies between her trial testimony and
other soldiers’ observations of her flirtatious behavior toward appellant prior to the
incident.

        Following the government’s case, the defense called a number of witnesses
during its case-in-chief, including SGT Clinton and SPC Johnson. Sergeant Clinton
testified that while in the work place, she heard SPC FC ask appellant if he wanted
to engage in a threesome with her and a friend. This was in direct contradiction with
SPC FC’s testimony that she had never asked appellant about having a threesome.

        The defense called SPC Johnson and during her direct examination, the
military judge held an Article 39(a) session to address an objection. During the
39(a) session, the government moved for permission during its cross-examination of
SPC Johnson to elicit that SPC FC told SPC Johnson appellant had “raped” her. The
government asserted the statement was admissible under Mil. R. Evid. 801(d)(1)(B)
as a prior consistent statement because the defense had called into question SPC
FC’s credibility, asking her questions “along the line[s] of isn't it true you met with
the prosecution, isn't it true you met with the prosecution multiple times, [and] isn't
it true you have an SVC.” The government claimed the purpose of this line of
questioning was to suggest SPC FC had a recent motive to fabricate that originated
at the time that she met with the government attorneys. Although the government
did not state which subpart of Mil R. Evid. 801(d)(1)(B) applied, it is clear from the
government’s argument that it sought admission under subpart (i).

       The defense counsel objected but she did not dispute the government’s
assertion regarding SPC FC’s recent motive to fabricate. Rather, defense counsel
objected on the ground that the statement at issue was not a prior consistent
statement because SPC FC’s motive to fabricate arose after she awoke the morning
of the sexual assault, before she had spoken to anyone about it. The defense argued
SPC FC had an immediate motive to fabricate based on appellant not staying with




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her after they engaged in sexual intercourse and because SPC FC was jealous of
appellant’s interest in her best friend, whom he had first met the night before. 4

       Overruling the defense’s objection, the military judge ruled the government
would be permitted during its cross-examination of SPC Johnson to ask her whether
SPC FC told her appellant had raped her. The court ruled the evidence was
“actually” admissible under Mil. R. Evid. 801(d)(1)(b)(ii), explaining the “rule
kicks in when credibility has been attacked on another ground.” The military judge
went on to explain that defense counsel impeached by contradiction SPC FC’s
credibility and testimony when they elicited testimony from SGT Clinton that SPC
FC inquired into a threesome with appellant after SPC FC testified that she did not.
The military judge determined that this impeachment by contradiction “allows the
government to ask the question.” The military judge did not provide any further
analysis for her ruling. Relying on her previous rationale, the military judge
likewise permitted the government to elicit similar statements from two other
defense witnesses, SPC Martin 5 and SPC Daniel. 6

                                 LAW AND DISCUSSION

    A. The Relevancy Link between the Prior Consistent Statement and How it Rehabilitates

      Appellant asserts that the military judge erred when she permitted the
government to elicit testimony from three defense witnesses regarding statements
SPC FC made to each of them that she had been “raped” by appellant. We agree that
the military judge misapplied Mil. R. Evid. 801(d)(1)(B)(ii).

4
  Although the military judge did not indicate why she rejected defense’s contention
that SPC FC’s motive to fabricate predated the prior consistent statement to SPC
Johnson, we find her rejection of defense’s contention reasonable.

5
 During the cross-examination of SPC Martin, the government asked whether SPC
FC had told her that appellant raped her. The defense objected on the basis of “facts
not in evidence” and because the question begs the “finality of judgement.” The
military judge overruled the objection “on the basis the court ruled earlier with
testimony from Specialist Johnson and the court will allow it under [MIL. R. EVID.
801(d)(1)(b)(ii)].”
6
 During the cross-examination of SPC Daniel the government asked “she told you
what [appellant] did to her?,” in reference to a conversation between SPC Daniel and
SPC FC. The defense objected that the question was outside the scope of the direct
examination. The military judge overruled the objection, again relying on her
previous ruling.



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       We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion. United States v. Kelly, 72 M.J. 237, 242 (C.A.A.F. 2013).
(citation omitted). “A military judge abuses his discretion when his findings of fact
are clearly erroneous, the court’s decision is influenced by an erroneous view of the
law, or the military judge’s decision on the issue at hand is outside the range of
choices reasonably arising from the applicable facts and law.” Id. (citation omitted).
The military judge’s findings of fact are reviewed under the clearly erroneous
standard, while his conclusions of law are reviewed de novo. United States v. Ayala,
43 M.J. 296, 298 (C.A.A.F. 1995).

      Military R. Evid. 801(d)(1)(B)(ii) permits the use of a prior consistent
statement to rehabilitate the credibility of a witness “attacked on another ground.”
Recently summarized by our superior court, for a prior consistent statement to be
admissible under Mil. R. Evid. 801(d)(1)(B)(ii), it must satisfy the following:

                (1) the declarant of the out-of-court statement must
                testify,
                (2) the declarant must be subject to cross-examination
                about the prior statement,
                (3) the statement must be consistent with the
                declarant’s testimony,
                (4) the declarant’s credibility as a witness must have
                been “attacked on another ground” other than the ones
                listed in [Mil. R. Evid.] 801(d)(1)(B)(i), and
                (5) the prior consistent statement must actually be
                relevant to rehabilitate the witness’s credibility on the
                basis on which he or she was attacked.

United States v. Finch, __ M.J. __, 2020 CAAF LEXIS 136, at *18-19
(C.A.A.F. 3 Mar. 2020).

       The proponent of the prior consistent statement must articulate “the relevancy
link between the prior consistent statement and how it will rehabilitate” the
witness’s in-court testimony “with respect to the particular type of impeachment that
has occurred.” Id., at *19 (citation omitted). “[T]o be admissible for rehabilitation,
a prior consistent statement must satisfy the strictures of [Mil. R. Evid.] 403.” Id.,
at *16 (quoting the Drafters’ Analysis at A22-16). “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. Ediger, 68
M.J. 243, 248 (C.A.A.F. 2010) (quoting United States v. Ruppel, 49 M.J. 247, 251
(C.A.A.F. 1998)).

      Here, the military judge admitted the three statements pursuant to Mil. R.
Evid. 801(d)(1)(B)(ii), ruling the defense opened the door when they attacked the in-



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court testimony and credibility of SPC FC by eliciting contradictory testimony from
another witness. The military judge offered no further explanation for her ruling. 7

       Many of the requirements of Mil. R. Evid. 801(d)(1)(B)(ii) were satisfied:
SPC FC testified and was vigorously cross-examined, and the prior statements in
question were consistent with her in-court testimony. However, according to the
military judge, the basis on which SPF FC was attacked was impeachment by
contradiction regarding whether she had asked appellant about engaging in a
threesome. The prior consistent statements admitted were SPC FC telling three
other soldiers that appellant “raped” her. Here, the military judge failed to establish
for the record “the relevancy link between the prior consistent statement and how it
[would] rehabilitate” SPC FC on the basis of the contradictory testimony regarding
the threesome request. See Finch, __ M.J. at __, 2020 CAAF LEXIS 136, at *19.

      Without further explanation for her ruling, it is unclear how the military judge
concluded that the prior consistent statements were relevant to rehabilitate SPF FC’s
testimony on the basis on which she was attacked. Accordingly, we find the military
judge erred in admitting the statements under Mil. R. Evid. 801(d)(1)(B)(ii) 8.

                              B. The Tipsy Coachman Doctrine

      Even though the military judge mistakenly relied on subpart (ii) of Mil. R.
Evid. 801(d)(1)(B) as the basis for admission, we find the ultimate admission of the
statements correct under the “Tipsy Coachman Doctrine.” See United States v.
Carista, 76 M.J. 511 (Army Ct. Crim. App. 2017). Failing to rule on the
government’s reasoning for admitting the prior consistent statements, “the military
judge arrived at the correct result, even if for the wrong reason.” United States v.
Heath, 76 M.J. 576, 578 (Army Ct. Crim. App. 2017) (citing Carista, 76 M.J. 511).

      At trial, the government initially sought to admit SPC FC’s out-of-court
statements that appellant had raped her under Mil. R. Evid. 801(d)(1)(B)(i). The


7
  Without the military judge providing her reasoning for rejecting the government’s
basis for admission, it is unclear why it was rejected .
8
  We note that military judges are afforded great deference to admit evidence when
they conduct a detailed Mil. R. Evid. 403 analysis. Notwithstanding this court’s
well-established guidance to military judges to place their Mil. R. Evid. 403
analyses on the record, see, e.g., Ruppel, 49 M.J. at 251, the military judge failed to
conduct a Mil. R. Evid. 403 analysis, let alone place that analysis on the record for
our review. See United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000) (“This
Court gives military judges less deference if they fail to articulate their balancing
analysis on the record, and no deference if they fail to conduct the Rule 403
balancing.”).



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government’s stated purpose for eliciting the statements was to rebut the defense’s
implication that SPC FC had developed a recent fabrication or improper influence.
The defense’s implication could be inferred from the defense counsel asking SPC FC
several questions about her multiple meetings with prosecutors and law enforcement
officials to include a meeting the Monday before trial.

        A statement is “not hearsay” if it is “consistent with the declarant's testimony
and is offered to rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive in so testifying.”
Mil. R. Evid. 801(d)(1)(B)(i). By implying SPC FC’s testimony had been
improperly influenced as recently as the Monday before trial, appellant risked the
government offering a consistent statement made by SPC FC at any time before that
day. See Heath, 76 M.J. at 578 (holding defense opened the door to victim’s prior
consistent statement by questioning her regarding her pretrial preparation with
government counsel and law enforcement). Because SPC FC’s statements to her
fellow soldiers were consistent with her in-court testimony and predated the alleged
recent improper influence, the statements were not hearsay and were properly
admissible under Mil. R. Evid. 801(d)(1)(B)(i).

       Though the government never specified which subpart of Mil. R. Evid.
801(d)(1)(B) allowed for proper admission of the prior consistent statements, the
argument they advanced at trial clearly fell under subpart (i) of the rule. It is
imperative that counsel identify whether a prior consistent statement is offered to
rebut an allegation of recent fabrication or improper influence or to rehabilitate a
witness on a specific point on which that witness’s credibility was attacked. Stating
with specificity the grounds for admission assists a military judge in providing a
clear ruling.

                        C. No Substantial Influence on the Findings

       Even if it was error for the military judge to admit the statements under either
subpart of Mil. R. Evid. 801(d)(1)(B), we are convinced the admission of the
statements did not prejudice appellant. See UCMJ art. 59(a). “When this court finds
that a military judge erred in allowing evidence to be admitted, the government
bears the burden of demonstrating that the admission of that erroneous evidence was
harmless.” Finch,__ M.J. at __, 2020 CAAF LEXIS 136, at *24 (citing United
States v. Frost, 79 M.J. 104, 111 (C.A.A.F. 2019) (citations omitted)). “For
preserved nonconstitutional evidentiary errors, the test for prejudice is whether the
error had a substantial influence on the findings.” Id. (internal quotation marks and
citations omitted). In testing for prejudice, we consider: “(1) the strength of the
Government's case, (2) the strength of the defense case, (3) the materiality of the
evidence in question, and (4) the quality of the evidence in question.” Id. (quoting
United States v. Kohlbek, 78 M.J. 326, 334 (C.A.A.F. 2019)).




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       Having conducted a thorough review of the record, the government presented
a strong case. First, SPC FC’s in-court testimony provided a detailed account of the
sexual assault and, although defense counsel extensively cross-examined SPC FC,
she made little headway in discrediting SPC FC’s account of the actual assault.
Second, the government introduced damaging statements by appellant to law
enforcement that were essentially uncontroverted by the defense. Specifically,
appellant’s statements described two different versions of what occurred in SPC
FC’s room that contradicted each other and contained false statements. In his
second version of events, appellant averred that SPC FC consented to having sexual
intercourse with him because she said “yes” in response to his inquiry regarding her
well-being—an inquiry appellant posed after observing an intoxicated SPC FC
crawling on the floor and vomiting. Appellant’s claim that SPC FC’s “yes,”
indicating she was ok, constituted consent to engage in sexual intercourse was
nothing short of absurd.

       We also find the defense’s case was not strong. Although defense counsel
attempted to advance several theories, none seemed plausible based on our review of
the record. First, the defense attempted to establish SPC FC fabricated the sexual
assault merely because appellant did not stay with her after they engaged in sex.
The defense also attempted to show SPC FC fabricated her allegation because she
was jealous that appellant displayed an interest in her best friend, with whom
appellant had exchanged phone numbers the night before the assault. Additionally,
defense counsel was unsuccessful in attacking SPC FC’s character for honesty given
that one of the defense witnesses testified unequivocally that SPC FC was an honest
person.

       We find the materiality and quality of the three statements in question—SPC
FC telling three individuals she was raped by appellant—was low. First, the
statements are conclusory in nature and do not offer any supporting facts. They
merely conclude appellant “raped” SPC FC but do not provide substantive details
that could have corroborated SPC FC’s in-court testimony recounting the sexual
assault. We also note that it was the defense that first introduced evidence that SPC
FC initially told numerous friends about the sexual assault before she officially
reported it. As a result, the government’s subsequent introduction of the three
conclusory statements had little, if any, damaging impact.

       In light of these considerations, if the military judge erred in admitting the
three statements, the government has met its burden to show that they did not have a
substantial influence on the findings in this case.




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