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

                                 Before
              K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      JAMES R. RICH
 AVIATION STRUCTURAL MECHANIC SECOND CLASS (E-5), U.S. NAVY

                           NMCCA 201400420
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 31 July 2014.
Military Judge: CDR Michael J. Luken, JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA.
Staff Judge Advocate's Recommendation: CDR S.J. Gawronski,
JAGC, USN.
For Appellant: LT Doug Ottenwess, JAGC, USN; LT Jessica
Ford, JAGC, USN.
For Appellee: Maj Suzanne M. Dempsey, USMC; LCDR Keith
Lofland, JAGC, USN.

                           29 December 2015

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                     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.

PER CURIAM:

     An officer and enlisted panel, sitting as a general court-
martial, convicted the appellant, contrary to his pleas, of one
specification each of aggravated sexual abuse of a child,
aggravated sexual contact with a child, and indecent liberty
with a child in violation of Article 120, Uniform Code of
Military Justice, 10 U.S.C. § 920 (2008).1 Following findings,
the military judge conditionally dismissed the sexual contact
and indecent liberties specifications as an unreasonable
multiplication of charges. The members sentenced the appellant
to seven years’ confinement and a dishonorable discharge. The
convening authority approved the sentence but waived automatic
forfeitures.

      The appellant now alleges:

      (1)   He was deprived of a panel of fair and impartial
            members because one of the members was not honest
            during voir dire;

      (2)   The military judge abused his discretion by admitting
            out-of-court statements of the child victim to her
            mother under hearsay exceptions; and,

      (3)   The evidence was legally and factually insufficient to
            sustain his conviction.2

      We disagree and affirm the findings and the sentence.

                                 Background

     In January 2012, the appellant was living with his
girlfriend, MD, in Virginia Beach, Virginia. MD had a three-
year-old daughter, AD, from a previous marriage who lived part-
time with MD in Virginia. MD was, at this time, working and
going to school. On some occasions, the appellant would pick AD
up from preschool and watch her until MD returned home. The
appellant and MD were happy in their relationship and talking
about marriage.

     One evening, MD was home alone with AD, preparing herself
and her daughter for a shower. AD said, “Guess what, I kissed
Guy’s private parts.” Guy was a nickname AD used for the
appellant. MD, trying to remain light and upbeat, responded,
“No you didn’t.” AD said that she did. MD puckered her closed
lips and kissed her hand, asking her daughter, “Well, did you
kiss it like this?” AD told her mother, “No, Mommy, I did it


1
  As the offenses allegedly occurred in 2010, the version of Article 120, UCMJ
in effect from 1 October 2007 through 27 June 2012 applies.
2
  The appellant personally raised these assignments of error under United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
                                      2
like this,” and AD opened her mouth and moved her head up and
down.3

     MD continued through AD’s pre-bedtime routine, occasionally
asking additional questions. AD stated that the incident took
place in a chair in the living room while her mother was not
home. AD described the appellant placing his hands on the back
of her head during the incident. MD asked her daughter “What
was he like down there? Was he hairy?” AD responded “No,
Mommy, he was like you.” MD testified that both she and the
appellant shaved their pubic regions.4 The next day, MD reported
the incident to local authorities.

                            Analysis

Impartiality of Members

     The appellant first claims that his right to a fair and
impartial members panel was violated because one of the members
was not honest during voir dire. Specifically, LT K indicated
in voir dire that he would be able to follow the military
judge’s instructions to consider all matters presented in
extenuation and mitigation and that he would not have a fixed,
inelastic, or inflexible attitude concerning a particular type
of punishment.

     During presentencing, the appellant presented good military
character evidence, both testimonial and documentary. The
military judge then instructed the members that “all the
evidence you have heard in this case is relevant on the subject
of sentencing.”5 This, he explained, included evidence of good
military character.

     During voir dire for a subsequent, unrelated court-martial,
LT K was asked if he would consider the accused’s entire career
when determining an appropriate sentence. He responded in the
negative. He then explained that while he could consider the
entire career if the military judge ordered him to, in a
previous trial (the appellant’s), he found the good military
character evidence presented irrelevant and instead based the
sentence on the crime.


3
    Record at 690.
4
    Id. at 692.
5
    Id. at 1062.
                                3
      Whether this post-trial statement indicates that LT K was
dishonest during voir dire is questionable. But in any event,
it is not competent evidence for our consideration. MILITARY RULE
OF EVIDENCE 606(b)(1), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.), provides that during an inquiry into the validity of a
finding or sentence, a member may not testify or provide an
affidavit about his “mental processes concerning the finding or
sentence.” It then enumerates exceptions, all of which are
inapplicable here. MIL.R.EVID. 606(b)(2).

     This rule derives from FEDERAL RULE OF EVIDENCE 606(b). Its
“drafters clearly intended that the federal rule apply to
courts-martial, with an additional provision for cases involving
unlawful command influence.” United States v. Loving, 41 M.J.
213, 235-36 (C.A.A.F. 1994). Its purpose is to protect “freedom
of deliberation” and “the stability and finality of verdicts” as
well as to “protect court members ‘from annoyance and
embarrassment.’” Id. at 236 (quoting United States v. Bishop,
11 M.J. 7, 9 (C.M.A. 1981)).

     Federal Courts of Appeals “have uniformly refused to
consider evidence from jurors indicating that the jury ignored
or misunderstood instructions in criminal cases.” Id. at 236
(citations omitted). And the Supreme Court has expressly
applied FED. R. EVID. 606(b) to exclude evidence of what a juror
said during deliberations to demonstrate that the juror was
dishonest during voir dire. Warger v. Shauers, 135 S. Ct. 521,
525 (2014).

      The only proffered evidence of LT K’s purported dishonesty
during voir dire is his statement directly pertaining to his
mental process regarding an appropriate sentence. Such evidence
is precluded by MIL. R. EVID. 606(b).

Admissibility of Hearsay

      The appellant next argues that the military judge abused
his discretion by admitting AD’s out-of-court statements to her
mother on the dual bases of the excited utterance exception (MIL.
R. EVID. 803(2)) and the residual hearsay exception (MIL. R. EVID.
807). We will analyze the admissibility of the evidence under
the residual hearsay exception because admissibility under that
exception moots the applicability of the excited utterance
exception, which under the facts of this case is arguably more
tenuous.



                                  4
     We review a military judge’s admission of evidence for an
abuse of discretion. United States v. Kasper, 58 M.J. 314, 318
(C.A.A.F. 2003). When testing for abuse of discretion, we
examine whether the “challenged action [is] arbitrary, fanciful,
clearly unreasonable, or clearly erroneous.” United States v.
Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013) (citation and internal
quotation marks omitted). Specifically, “[a] military judge's
decision to admit residual hearsay is entitled to considerable
discretion on appellate review.” United States v. Wellington,
58 M.J. 420, 425 (C.A.A.F. 2003) (citation and internal
quotation marks omitted).

     A military judge may allow hearsay statements into
evidence, even when those statements are not covered by specific
exceptions and exemptions, based on “equivalent circumstantial
guarantees of trustworthiness.” MIL.R.EVID. 807. To do so, the
military judge must determine: (1) “the statement is offered as
evidence of a material fact;” (2) the statement “is more
probative on the point for which it is offered than other
evidence which the proponent can procure through reasonable
efforts;” and (3) “the general purposes of these rules and the
interests of justice will best be served by admission of the
statement into evidence.”6 Wellington, 58 M.J. at 425.

     In evaluating circumstantial guarantees of trustworthiness,
a military judge examines all indicia of reliability, including:
(1) the mental state and age of the declarant; (2) the
spontaneity of the statement; (3) the use of suggestive
questioning; and (4) whether the statement can be corroborated.
United States v. Donaldson, 58 M.J. 477, 488 (C.A.A.F. 2003)
(citing United States v. Grant, 42 M.J. 340, 343-44 (C.A.A.F.
1995)). A military judge’s findings of fact regarding
circumstantial guarantees of trustworthiness are reviewed for
clear error. Id.

     The military judge in this case made detailed findings of
fact7 regarding AD’s initial report to her mother, summarized as
follows:

     (a) AD’s statements were “clear, voluntary, uncontrived,
and spontaneous.”


6
  The final requirement of MIL.R.EVID. 807, that the proponent must provide
timely notice of intent to offer the evidence at trial, is not disputed in
this case.
7
    AE XXXVIII.
                                      5
     (b) The questions MD asked her daughter were open-ended and
not suggestive. On the contrary, MD casually challenged her
daughter’s initial disclosure using a “child-friendly” tone.

     (c) In response to her mother’s challenge and questions, AD
insisted that the report was true and provided more detail about
the incident. AD’s answers were not the result of reflection or
fabrication.

     (d) At the time AD made the statements, MD and the
appellant were happy and discussing marriage. There were no
personal conflicts between AD and the appellant.

     (e) After this initial report, AD made other consistent
statements to the forensic interviewer and to her father with
little or no prompting.

     (f) AD was available and able to testify, but not to the
same level of detail that she gave her mother two and a half
years prior, directly after the incident.

     Upon review of the record, we find nothing clearly
erroneous in the military judge’s findings of fact. Those
findings, in turn, support his conclusion that AD’s initial
statements to her mother met all criteria for admissibility
under the residual hearsay exception. We thus find no abuse of
discretion.

Legal and Factual Sufficiency

     We review questions of legal and factual sufficiency de
novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for legal sufficiency of the evidence is
“whether, considering the evidence in the light most favorable
to the prosecution, any reasonable fact-finder could have found
all the essential elements beyond a reasonable doubt.” United
States v. Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citing
United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)). The
test for factual sufficiency is whether “after weighing all the
evidence in the record of trial and recognizing that we did not
see or hear the witnesses as did the trial court, this court is
convinced of the appellant's guilt beyond a reasonable doubt.”
United States v. Rankin, 63 M.J. 552, 557 (N.M.Ct.Crim.App.
2006) (citing Turner, 25 M.J. at 325 and Art. 66(c), UCMJ),
aff'd, 64 M.J. 348 (C.A.A.F. 2007). Beyond a reasonable doubt,
however, does not mean that the evidence must be free from
conflict. Id.

                                6
     The elements of aggravated sexual abuse of a child are: (1)
that the accused engaged in a lewd act, and (2) that the act was
committed with a child who had not attained the age of 16 years.
Art. 120(f), UCMJ.

     The appellant highlights that the only evidence here was
the testimony of AD. But “[t]he testimony of only one witness
may be enough to meet [the Government’s] burden so long as the
members find that the witness's testimony is relevant and is
sufficiently credible.” United States v. Rodriguez-Rivera, 63
M.J. 372, 383 (C.A.A.F. 2006) (citation omitted). And the
appellant’s chosen crime, victim, and setting——oral penetration
without ejaculation of a three-year-old when no one else was
home——hardly lent themselves to additional evidence.

     Considering the entire record, particularly the
circumstances in which AD made her statements, their spontaneous
and consistent nature, AD’s use of age-appropriate terms and
concepts, and the lack of any indication that she made the
statements in response to suggestive questioning or with a
motive to fabricate, we find the evidence both legally and
factually sufficient.

                           Conclusion

    The findings and the sentence are affirmed.




                             For the Court




                             R.H. TROIDL
                             Clerk of Court




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