                         UNITED STATES, Appellee

                                         v.

                   Anthony T. HALL, Lance Corporal
                    U. S. Marine Corps, Appellant

                                  No. 07-0384

                        Crim. App. No. 200600805

       United States Court of Appeals for the Armed Forces

                          Argued January 8, 2008

                       Decided February 25, 2008

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.


                                     Counsel


For Appellant:    Captain S. Babu Kaza, USMC (argued).


For Appellee: Lieutenant Timothy H. Delgado, JAGC, USN
(argued); Colonel Louis J. Puleo, USMC, (on brief); Commander
Paul C. LeBlanc, JAGC, USN, and Lieutenant Tyquili R. Booker,
JAGC, USN.



Military Judge:    B. W. MacKenzie



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hall, No. 07-0384/MC


     Judge BAKER delivered the opinion of the Court.

     Contrary to his pleas, Appellant was convicted by general

court-martial with members of making a false official statement

and maiming, in violation of Articles 107 and 124, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. §§ 907, 924 (2000).   He

was sentenced to confinement for forty-two months and a bad-

conduct discharge.   This sentence was approved by the convening

authority as adjudged.   The United States Navy-Marine Corps

Court of Criminal Appeals affirmed the approved findings and

sentence.   United States v. Hall, No. NMCCA 200600805 (N-M.

Crim. Ct. App. Mar. 20, 2007).

     We granted review of the following issues:

I.   WHETHER THE LOWER COURT ERRED IN STATING THAT APPELLANT HAD
     RECEIVED A DISHONORABLE DISCHARGE AT TRIAL, WHEN THE MEMBERS
     SENTENCED HIM TO A BAD-CONDUCT DISCHARGE, AND THE CONVENING
     AUTHORITY APPROVED ONLY A BAD-CONDUCT DISCHARGE.1

II. WHETHER THE LOWER COURT ERRED IN FINDING THAT THE MILITARY
    JUDGE’S DECISION TO ALLOW, OVER DEFENSE OBJECTION, A NON[-]
    EXPERT NCIS AGENT TO PROVIDE EXPERT TESTIMONY TO THE MEMBERS
    WAS HARMLESS, WHERE THIS WAS IN VIOLATION OF MILITARY RULE
    OF EVIDENCE 701(C), AND THE GOVERNMENT HAS CONCEDED THAT
    THIS TESTIMONY WAS BOTH MATERIAL TO ITS CASE AND WAS OF HIGH
    QUALITY.

Recognizing the Government’s concession of error regarding Issue

II, we conclude that the lower court did not err in finding this

error harmless and we affirm.



1
  We did not order briefs on this issue and we resolve it in the
decisional paragraph of this opinion.

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United States v. Hall, No. 07-0384/MC


                              BACKGROUND

     While on convalescent leave for a rotator cuff injury,

Appellant cared for AC, the nine-month-old son of a civilian

living at Pearl Harbor whose wife was deployed.    On April 9,

2005, the child suffered second-degree burns on his left foot,

buttocks, and thigh.   According to Appellant, the infant

suffered the burns when he attempted to bathe the child by

placing him in two to three inches of hot water.   However, as

recounted below, inconsistencies in Appellant’s account as well

as the nature of the child’s burns raised suspicions.   Appellant

was subsequently charged with maiming.

     At trial the Government presented the following evidence.

First, the victim’s father, testified about Appellant’s failure

to take his son to the hospital at the first discovery of the

burns.   According to AC’s father, when asked, Appellant’s

reasoning was that he “didn’t have his ID card.”   The child did

not receive medical attention until nearly four hours after the

infliction of injuries.   AC’s father also testified to the

severity of the burns, the scarring that remains, and the

ability and inclination of his son when responding to the

stimulus of hot bath water.    Second, Special Agent (SA) Mark

Victor Politi, Naval Criminal Investigation Service (NCIS),

testified that during questioning, Appellant told him that he

had intended to bathe the child and that he had felt the water


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United States v. Hall, No. 07-0384/MC


as he put a stopper in the sink.       Third, the Government called

SA Allexis Rizas.   SA Rizas has a master’s degree in forensic

science with experience and training in child burn cases.      Over

defense counsel’s objection, SA Rizas testified that she

believed the burns on the child were a “textbook case of an

immersion burn with clear lines of demarcation and a lack of

splash marks .   . . indicative of non-accidental trauma.”     The

military judge admitted this testimony as layperson opinion

under Military Rule of Evidence (M.R.E.) 701.

     Finally, the Government called Dr. Victoria Schneider who

also testified to the absence of splash marks as a sign of

nonaccidental burns.   Dr. Schneider, however, further stated

that the lack of splash marks indicated that the child had been

held still in the hot water.

                           DISCUSSION

     In light of the Government’s concession that the military

judge erred in admitting SA Rizas’s testimony under M.R.E. 701,

we will move directly to the assigned issue:      was the error

harmless?    “Whether an error, constitutional or otherwise, was

harmless, is a question of law that we review de novo. . . .

For nonconstitutional errors, the Government must demonstrate

that the error did not have a substantial influence on the

findings.”   United States v. McCollum, 58 M.J. 323, 342

(C.A.A.F. 2003) (citation omitted); United States v. Walker, 57


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United States v. Hall, No. 07-0384/MC


M.J. 174, 178 (C.A.A.F. 2002) (citing Kotteakos v. United

States, 328 U.S. 750, 765 (1946)).

     This Court evaluates claims of prejudice from an

evidentiary ruling by weighing four factors:    “(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.    We apply the same four-

pronged test for erroneous admission of government evidence as

for erroneous exclusion of defense evidence.”    United States v.

Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999) (citations omitted).

     The Government concedes that the testimony of SA Rizas was

material.    With respect to the other three Kerr factors, the

Government argues that its case is strong notwithstanding SA

Rizas’s testimony, Appellant’s statement of events is

incredible, and in light of Dr. Schneider’s testimony, SA

Rizas’s testimony was of little qualitative value.

     Not surprisingly, Appellant takes a different view with

respect to the relative strength of the Government’s case and

the quality of his case at trial.     However, the focus of

Appellant’s argument is on the qualitative nature of SA Rizas’s

testimony.   Specifically, Appellant argues, SA Rizas’s testimony

was prejudicial because she failed to qualify her conclusion and

therefore foreclosed the possibility that Appellant held the

child in the water momentarily before realizing the hot


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United States v. Hall, No. 07-0384/MC


temperature and removing him.     Essentially, Appellant argues

that SA Rizas’s testimony suggested malice on his part while Dr.

Schneider’s testimony does not.

     In applying the Kerr factors we conclude that the lower

court did not err in holding that the admission of SA Rizas’s

testimony was harmless error.     First, the Government’s case was

strong, if not overwhelming.    The father of the burned child

testified to AC’s developed strength and awareness, making it

doubtful that the child remained still while being placed into

water hot enough to burn him in a matter of seconds:

     A: My son -– he is very, very aware. In fact,
     if my son was getting placed in cold water, he
     would probably try to squirm and try to get up
     and remove himself from it. . . .

     DC: Did you ever observe your child react to . .
     . to water either too cold or too hot?

     A:   Yes, I did.

     Q: All right.      Explain what happened in those
     instances.

     A: What he did was he was trying to -– he’d
     groan, and he would try to push himself up and
     get out of the water.

     Q:   Would he ever just sit still?

     A:   No, he would not, no.

     Q:   Would he just freeze up and sit there?

     A:   No.

     Q:   Any possibility?



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United States v. Hall, No. 07-0384/MC


     A:   No, none.

     Dr. Schneider testified that the victim’s injuries,

“because of their pattern, because of the uniformity of the

depth of the burn, because of the clear demarcation, because of

the -– what they call sink marks, those straight lines across –-

that you saw across the waist demarking the unburned skin from

the burned skin –- that’s all consistent with non-accidental

etiology with someone holding him in a hot liquid.”   When Dr.

Schneider qualified what she meant by “non-accidental,” she did

not exclude the possibility of malice as suggested by Appellant.

Her testimony actually suggested intentional behavior as the

cause of the injuries:

     A: Well, it was significant that he was able to
     pull himself up, and he readily does pull himself
     up. So you would expect if he were placed
     accidentally into hot liquid that there would be
     a lot of movement. He would not stay still in
     that water on his own accord.

     Q: Can you say within medical reasonable
     certainty that –- you would have seen -– had the
     child not been held still, you would have seen a
     wavy pattern on his body?

     A: You would have seen splash marks if the water
     was very hot. You would have seen other evidence
     of movement of the child on the skin.

Dr. Schneider’s testimony was also supported by photographs

of the victim showing a uniform pattern of blistering.

     In contrast, the defense case was weak, even implausible.

The alternative theories advanced by the defense were that


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United States v. Hall, No. 07-0384/MC


Appellant was either unable to lift the child out of the water

before the child was burned or that he left the room briefly

during which time the child was burned.    Yet, the father

testified to the fact that he often observed Appellant carrying

his son without difficulty or pain.   Further, Appellant admitted

to SA Politi that he was able to take the child out of the water

immediately in two or three past instances when the child

reacted to the temperature of the water.

     The defense also advanced the theory that AC was only in

the water for seconds.   However, Dr. Schneider’s testimony

regarding the lack of splash marks cast serious doubt on this

version of events.   The doctor also testified that the severity

of the burns on the child could have only been caused by either

a short amount of time in scalding hot water or a longer amount

of time in lesser temperatures.   Specifically, the burns could

have been caused by ten minutes in temperatures as low as 120

degrees or by two seconds in 150-degree water.   If Appellant had

tested the water when he put the plug in the drain, as he told

SA Politi, he likely would have discerned the heat of water that

could have inflicted severe burns on a child in only seconds.

Appellant’s position fails to account for the severe burns

inflicted on the child victim.

     With respect to the third Kerr factor, the Government has

conceded the materiality of SA Rizas’s testimony, and correctly


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United States v. Hall, No. 07-0384/MC


so.   SA Rizas’s testimony directly expressed an opinion

regarding the cause of the victim’s injuries as well as

Appellant’s criminal culpability in causing the injuries.

Standing alone, such testimony might well have been

determinative.

      But the testimony did not stand alone.   Turning to the

fourth Kerr factor, we are persuaded that the testimony of SA

Rizas would not have substantially influenced the verdict.      We

reach this conclusion in light of the other evidence presented

by the Government, the nature of Appellant’s defense, and in

particular, the duplicative quality of SA Rizas’s testimony when

compared to that of the actual expert in the case, Dr.

Schneider.    Among other things, SA Rizas’s testimony did not

suggest the cause of the injuries, only that they were not

accidental.   Whereas, Dr. Schneider’s testimony did account for

causation.    In addition to stating a firm belief that the burns

were “non-accidental,” Dr. Schneider attributed additional

significance to the absence of wave or splash marks, testifying

essentially that the child was held in hot water.   Furthermore,

both SA Rizas and Dr. Schneider testified to their professional

training and qualifications to assess the circumstances that

caused AC’s burns.   In light of the qualitative difference in

professional background and expertise, as well as the overlap in

testimony between Dr. Schneider and SA Rizas, we are persuaded


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United States v. Hall, No. 07-0384/MC

that SA Rizas’s testimony regarding nonaccidental burn

indications was not qualitatively significant in the context of

this case.   As a result, the Government has met its burden of

demonstrating that SA Rizas’s testimony did not have a

substantial influence on the findings.

                             DECISION

     Based on the above analysis, we conclude that the erroneous

admission of SA Rizas’s opinion testimony was harmless.

Regarding Issue I, the lower court’s opinion erroneously

indicates that the adjudged and approved sentence included a

dishonorable discharge.   Therefore, the decision of the United

States Navy-Marine Corps Court of Criminal Appeals as to the

findings is affirmed.   As for the lower court’s decision on the

sentence, we affirm only so much of the sentence extending to

what the convening authority approved, confinement for forty-two

months and a bad-conduct discharge.




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