UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BURTON, RODRIGUEZ, and FLEMING
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Staff Sergeant DAVID E. PADGETT
United States Army, Appellant

ARMY 20180306

Headquarters, U.S Army Africa/Southern European Task Force
Joseph A. Keeler, Military Judge
Colonel Karen H. Carlisle, Staff Judge Advocate

For Appellant: Captain Zachary A. Gray, JA; Matthew Flynn, Esquire (on brief).

For Appellee: Colonel Steven Haight, JA; Lieutenant Colonel Wayne H. Williams,
JA; Major Craig Schapira, JA; Captain Brian Jones, JA (on brief).

13 February 2020

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
BURTON, Senior Judge:

Appellant claims the military judge abused his discretion when he admitted
testimony of a witness’s prior consistent statements, and that several of the charges
and their specifications are legally and factually insufficient.' For the reasons set
forth below, we disagree with both assertions.

 

' Appellant also raises as an assignment of error that he was denied his due process
right to speedy post-trial review by a post-trial delay of 215 days. We considered
the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530-34 (1972), and find
appellant has not satisfied the fourth prong of demonstrating prejudice. Accordingly
we grant no relief.

Appellant has personally raised matters pursuant to United States v. Grostefon, 12

(continued. . .)
PADGETT—ARMY 20180306

An enlisted panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of violating a general regulation, one
specification of maltreatment, three specifications of making a false official
statement, one specification of abusive sexual contact, one specification of sexual
assault, three specifications of larceny of military property in excess of $500, two
specifications of assault consummated by a battery, and one specification of
communicating a threat, in violation of Articles 92, 93, 107, 120, 121, 128, and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 892, 893, 907, 920, 921, 928, and
934.2 The panel sentenced appellant to a dishonorable discharge and confinement
for twenty-four months. The convening authority approved the sentence as
adjudged.

BACKGROUND
Misconduct against Private AN

While appellant was assigned to Fort Bragg, he engaged in an inappropriate
relationship with Private (PVT) AN. Appellant and PVT AN were parachute riggers.
Appellant was PVT AN’s supervisor. They engaged in a consensual sexual
relationship for a few months. During the beginning of their relationship, while
visiting a beach, appellant hit PVT AN across her face. Private AN asked him why
he hit her, to which appellant laughed and replied, “Just play along.” On another
occasion, PVT AN spent the night with appellant. In the middle of the night, she

 

(. . . continued)

M.J. 431 (C.M.A. 1982). Appellant alleges his trial defense counsel were
ineffective. Broadly, appellant states he told his defense counsel on several
occasions that he had consensual sex with one of the victims on two other occasions;
that he provided nude photos of one of the victims during the investigation; and that
the government was permitted to admit messages between appellant and one of the
victims that were not the result of a digital forensic examination. Appellant does not
state how his counsel were deficient based on his three allegations, nor does he
demonstrate prejudice. Accordingly, we find appellant has fallen far short of
meeting his burden under Strickland v. Washington, 466 U.S. 668 (1984). We have
given full and fair consideration to appellant’s other matters raised pursuant to
Grostefon and find they likewise merit no relief.

2 The military judge merged the two specifications of assault consummated by a
battery (Specifications 1 and 2 of Charge II) with one of the specifications of sexual
assault (Specification 3 of Charge I) for sentencing. The military judge also merged
two of the specifications of making a false official statement (Specifications 1 and 2
of Additional Charge II) for sentencing.
PADGETT—ARMY 20180306

woke up to appellant standing over her, holding his penis, and ejaculating on her
face. Private AN was upset and their relationship ended shortly thereafter.

Misconduct against Private First Class SV

When appellant was later assigned to Aviano Air Base, Italy, he engaged in
another inappropriate relationship, this time with Private First Class (PFC) SV, who
was also a parachute rigger. Appellant, still a Staff Sergeant, was PFC SV’s direct
supervisor. On one occasion, appellant texted PFC SV asking her to come to his
house so that they could engage in sex. She agreed. Appellant texted PFC SV
stating, “I’m into some pretty weird things.” She responded “Okay.” After
appellant sent PFC SV his address, but prior to PFC SV arriving, appellant texted
her asking if he could “choke her until [she] passed out.” Private First Class SV
replied, “I feel like that is something that you need to bring up in person.”
Appellant replied back, “Well I’m going to let go when you stop moving.”

Private First Class SV decided to go to appellant’s home. Throughout her
stay there, they did not discuss appellant choking her. They engaged in consensual
sex and appellant requested PFC SV call him by his rank. When she did not comply,
appellant hit her in the face. Appellant called her a “whore and a slut.” Appellant
then began choking PFC SV with one hand, while the other hand was holding down
her wrists. Appellant applied pressure to PFC SV’s neck restricting her breathing.
While choking her, appellant continued to call her a “slut and a whore.” She said
“stop” several times. After approximately fifteen seconds, appellant let go of PFC
SV’s neck and then he slapped her in the face “really hard.” Appellant then
continued to have sex with her three or four times. When appellant finished, he told
her “You need to go shower.” Before PFC SV left appellant’s home, appellant

threatened her, “Don’t say anything to anybody,” and “This will ruin your career.”?

 

3 We find appellant’s statements are legally and factually sufficient to establish the
offense of communicating a threat under Article 134, UCMJ. Specifically, we
considered the context of appellant’s statements to PFC SV, which occurred almost
immediately after he assaulted and sexually assaulted her. These circumstances
“colored and qualified” appellant’s statements, demonstrating that they were
intended to prevent PFC SV from reporting. United States v. White, 62 M.J. 639,
642 (N.M. Ct. Crim. App. 2006) (holding “communicating a threat is ‘wrongful’
under Article 134 when the motive for the communications is wrongful.”) (citation
omitted). It is not necessary to discuss further appellant’s claim that his conviction
for communicating a threat is legally and factually insufficient.
PADGETT—ARMY 20180306
PVT AN and PFC SV Reporting

After appellant sexually assaulted PFC SV, she started dating Specialist (SPC)
SC. Private First Class SV told SPC SC that appellant was harassing her and
sending her sexual text messages. Specialist SC was also friends with PVT AN, and
put PFC SV and PVT AN in touch. Private AN told PFC SV that she already
reported appellant and PFC SV would be contacted as a part of the investigation.
Private First Class SV reported appellant’s harassment to the Army Criminal
Investigation Command (CID), but did not report appellant’s physical and sexual
abuse.

A few months later, PFC SV met with the unit trial counsel, Captain (CPT)
SM. During this meeting, CPT SM informed PFC SV that appellant admitted to
having sex with her, but he claimed it was consensual. At that point, PFC SV asked
CPT SM if she could get in trouble. Captain SM replied he could not guarantee that
she would not face adverse action, but he would advise her chain of command she
should not be held responsible for any fraternization. Private First Class SV then
reported that appellant sexually assaulted her, choked her, slapped her, and
threatened to ruin her career if she told anyone.

LAW AND DISCUSSION
A. Admission of Private First Class SV’s Prior Consistent Statements

We first address appellant’s assertion the military judge abused his discretion
in allowing CPT SM to testify, pursuant to Military Rule of Evidence [Mil. R. Evid.]
801(d)(1)(B)(i), regarding SV’s prior consistent statements to him reporting the
details of how appellant sexually assaulted her. We disagree and find PFC SV’s
prior consistent statements to CPT SM were admissible under Mil. R. Evid.

801(d)(1)(B)(a).*

Hearsay is defined as an out-of-court statement made by a declarant that is
offered in evidence “to prove the truth of the matter asserted in that statement.”
Mil. R. Evid. 801(c). Hearsay is generally inadmissible at trial. Mil. R. Evid. 802.
However, a prior consistent statement of a witness is not hearsay if it is offered “to
rebut an express or implied charge that the declarant recently fabricated it or acted

 

4 Appellant claims PFC SV’s prior consistent statements were inadmissible under
both Mil. R. Evid. 801(d)(1)(B)(i) and (ii). The military judge allowed the evidence
under both (i) and (ii). As we find PFC SV’s prior consistent statements to CPT SM
admissible under part (i), we do not address the admissibility of the evidence under

part (11).
PADGETT—ARMY 20180306

from a recent improper influence or motive in so testifying.” Mil. R. Evid.
801(d)(1)(B)(i); see also United States v. Allison, 49 M.J. 54, 57 (C.A.A.F. 1998).

Military Rule of Evidence 801(d)(1)(B) contains several “inherent safeguards”
that must be satisfied before prior statements will be admitted. United States v.
Hood, 48 M.J. 928, 933 (Army Ct. Crim. App. 1998) (citing United States v.
McCaskey, 30 M.J. 188, 191 (C.M.A. 1990)). “The rule’s predicate safeguards are
that the declarant must testify at trial and be subject to cross-examination; the
statement must be consistent with the declarant’s in-court testimony; and, the
statement must be offered to actually rebut an attack of recent fabrication or
improper motive or influence.” Hood, 48 M.J. at 933; see also United States v.
Frost, 79 M.J, 104, 109-10 (C.A.A.F. 2019). Additionally, “the prior statement....
must precede any motive or improper influence that it is offered to rebut.” Frost, 79
M.J. at 110. Also, “where multiple motives to fabricate or multiple improper
influences are asserted, the statement need not precede all such motives or inference,
but only the one it is offered to rebut.” Jd. (citing Allison, 49 M.J. at 57) (further
citations omitted).

In regards to Mil. R. Evid. 801(d)(1)(B)(i), the military judge found that the
defense had impeached PFC SV by eliciting testimony of her “improper motive of
colluding with [PVT AN] as evidenced by the calls made to them and [PVT AN]
encouraging [PFC SV] to testify[,] to go to CID and that collusion which continued
until just a couple of days ago.”

We review a military judge’s admission or exclusion of evidence for an abuse
of discretion. United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013) (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. Lloyd, 69 M.J. 95, 99
(C.A.A.F. 2010) (citations and internal quotation marks omitted).

We find PFC SV’s prior consistent statements to CPT SM were admissible
because they predated the improper influence elicited by defense that PVT AN and
PFC SV discussed their testimony with each other immediately prior to trial. The
military judge found that defense had elicited testimony that PVT AN and PFC SV
“colluded” in reporting appellant which continued until a couple of days before trial.
The military judge’s finding is clearly supported by PVT AN’s and PFC SV’s
testimony.

During the defense cross-examination of PVT AN, she testified that she
encouraged PFC SV to report appellant “because what [appellant] had done to [PFC
SV] and how he was treating [PFC SV] was very similar to the way that [PVT AN’s]
relationship with [appellant] started.” After encouraging PFC SV to report
appellant, PVT AN stated to PFC SV, “Let me know when you go [to CID] and what
PADGETT—ARMY 20180306

they say and then I’ll go.” Notably, PVT AN testified that she contacted PFC SV a
week prior to trial.

Defense counsel elicited very similar testimony from PFC SV on cross-
examination. Private First Class SV testified that she texted PVT AN after she left
CID asking her, “Want me to put anything else?” Central to the military judge’s
ruling, PFC SV confirmed that she talked to PVT AN “a few nights” prior to trial.

Accordingly, the military judge did not abuse his discretion in ruling CPT SM
could testify about PFC SV’s prior consistent statements to him, which predated the
improper motive insinuated by defense that PVT AN and PFC SV talked just days
before trial.’ See, e.g., United States v. Bell, 72 M.J. 543, 557 (Army Ct. Crim. App.
2013) (finding defense “unwittingly opened the door” to victim’s prior consistent
statement when defense cross-examined victim about the conversation she had with
her grandmother the night prior to trial and its impact on her in-court testimony);
United States v. Heath, 76 M.J. 576, 578 (Army Ct. Crim. App. 2017) (finding
defense implied that victim’s testimony was influenced by pretrial preparations with
the trial counsel as recently as the Sunday prior to trial which allowed admission of
a consistent statement made by the victim any time before that Sunday).

B. Legal and Factual Sufficiency

Appellant challenges the legal and factual sufficiency of his convictions for
sexually assaulting and maltreating PFC SV.° We disagree.

We review issues of legal and factual sufficiency de novo. UCMJ art. 66;
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted).
Our assessment of legal and factual sufficiency is limited to the evidence produced
at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (citations omitted).

 

> We pause to highlight the importance of identifying the precise point in time that
the charged improper influence or motive arose in relation to when the witness made
the prior consistent statement. See, e.g., United States v. Taylor, 44 M.J. 475, 480
(C.A.A.F. 1996); United States v. Morgan, 31 M.J. 43, 46 (C.M.A. 1990); United
States v. McCaskey, 30 M.J. at 192.

6 Appellant also challenges the legal and factual sufficiency of his convictions for
the abusive sexual contact of PVT AN; choking, hitting, and threatening PFC SV;
and making false official statements. We find the evidence legally sufficient to
support these convictions and are convinced of appellant’s guilt beyond a reasonable
doubt.
PADGETT—ARMY 20180306

The test for legal sufficiency is “whether, considering the evidence in the
light most favorable to the prosecution, a reasonable factfinder could have found all
the essential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J.
324, 324 (C.M.A. 1987) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
“(Ijn resolving questions of legal sufficiency, we are bound to draw every
reasonable interference from the evidence of record in favor of the prosecution.”
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).

The test for factual sufficiency is “whether, after weighing the evidence in the
record of trial and making allowances for not having personally observed the
witnesses, [we are] convinced of [appellant’s] guilt beyond a reasonable doubt.”
Turner, 25 M.J. at 325. In conducting this unique appellate role, we take “a fresh,
impartial look at the evidence,” and we apply “neither a presumption of innocence
nor a presumption of guilt” while making “[our] own independent determination as
to whether the evidence constitutes proof of each required element beyond a
reasonable doubt.” Washington, 57 M.J. at 399.

1. Sexual Assault of Private First Class SV

In regards to appellant’s conviction for sexually assaulting PFC SV, the
government was required to prove beyond a reasonable doubt that: (1) appellant
committed a sexual act upon PFC SV by causing penetration, however slight, of the
vulva... by the penis; and (2) appellant did so by causing bodily harm to PFC SV,
by “squeezing her neck and slapping her.” See Manual for Courts-Martial, United
States (2016 ed.) (MCM), pt. IV, 9 45(b)(3)(b). Appellant specifically challenges
whether there was sufficient evidence that PFC SV manifested her lack of consent to
sexual intercourse, and asserts he had a reasonable mistake of fact as to her consent.

With regard to consent, “lack of consent may be inferred based on the
circumstances of the offense. All the surrounding circumstances are to be
considered in determining whether a person gave consent, or whether a person did
not resist or ceased to resist only because of another person’s actions.” UCMJ art.
120(g)(8)(C). However, evidence of a misunderstanding of the circumstances
surrounding an offense may give rise to the defense of mistake of fact. See Rule for
Courts-Martial [R.C.M.] 916(G)(1). If shown by some evidence, mistake of fact as to
consent is a defense to sexual assault. See id. The defense of mistake of fact
requires that an accused, because of ignorance or mistake, incorrectly believed that
another consented to the sexual act. See id. In order to rely on the defense of
mistake of fact, appellant’s belief must have been honest and reasonable. See id.;
United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 1998) (quoting United States v.
Willis, 41 M.J. 435, 438 (C.A.A.F. 1995)). As we discuss below, we find that based
on the circumstances, PFC SV did not consent and appellant’s mistake of fact was
not objectively reasonable.
PADGETT—ARMY 20180306

Private First Class SV testified that while appellant, a Staff Sergeant and her
direct supervisor, was choking her, she was “really, really scared,” and “[she] didn’t
know when he was going to let go.” She testified that she “couldn’t really breathe
and she just wanted it to be over with.” She said “stop” several times and testified
that when she said “stop,” she wanted him to stop “everything.” After
approximately fifteen seconds, appellant let go of PFC SV’s neck and then he
slapped her in the face “really hard.” Appellant then continued to have sex with her.
Private First Class SV testified that after appellant stopped choking her and slapped
her, “[she] was really scared of [appellant],” and she “wanted it to be over.”

We find it was not objectively reasonable for appellant to believe PFC SV was
consenting to sex with him after he choked her and she pleaded for him to stop
several times. Appellant’s choking of PFC SV drastically altered the nature of their
sexual interaction. Appellant’s belief became even more unreasonable after he
slapped her really hard. Under these circumstances, it was reasonable for the
members to find beyond a reasonable doubt, due to appellant’s violent actions, that
PFC SV revoked her consent to sex with appellant, feared appellant, and as a result
she ceased resisting. We are also convinced beyond a reasonable doubt that all the
required elements of proof are met to convict appellant of sexually assaulting PFC
SV, and we are convinced the evidence factually supports appellant’s conviction.

2. Maltreatment of Private First Class SV

In regards to appellant’s conviction for maltreating PFC SV, the government
was required to prove: (1) PFC SV was subject to appellant’s orders; and (2)
appellant was cruel toward, oppressed, or maltreated PFC SV “by calling her a
whore and a slut, or words to that effect.” MCM, pt. IV, 9 17.b. Our Superior Court
has clarified that to affirm a conviction for maltreatment the evidence must prove:
“(a) the accused knew that the alleged victim was subject to his .. . orders; (b) the
accused knew that he. . . was making statements or engaging in certain conduct in
respect to that subordinate; and (c) when viewed objectively under all the
circumstances, those statements or actions were unwarranted, unjustified, and
unnecessary for any lawful purpose and caused, or reasonably could have caused,
physical or mental harm or suffering.” United States v. Caldwell, 75 M.J. 276, 281
(C.A.A.F. 2016).

Appellant does not specifically state why his conviction for maltreating PFC
SV is legally and factually insufficient, but alludes to the name-calling being part of
a consensual sexual encounter.’ We disagree and briefly address why appellant’s
conduct rises to the level of maltreatment.

 

7 In considering all the circumstances in which to view an accused’s actions,

(continued .. .)
PADGETT—ARMY 20180306

First, appellant’s assertion of consent is not relevant because the evidence
supports a finding beyond a reasonable doubt that the sex was no longer consensual
once appellant started choking PFC SV and she repeatedly pleaded with him to stop.
After PFC SV revoked consent, appellant continued to call her “a slut and a whore,”
and slapped her. At that point, PFC SV testified she was scared of appellant. Under
these circumstances, appellant’s actions, in the very least, reasonably could have
caused PFC SV physical or mental harm or suffering.

“The very lifeblood of the military is the chain of command.” Caldwell, 75
M.J. at 282. “The essence of the offense [of maltreatment] is abuse of authority. Id.
(citing United States v. Carson, 57 M.J. 410, 415 (C.A.A.F. 2002)). Viewing
appellant’s conduct “objectively under all the circumstance,” we begin by
recognizing that appellant’s relationship with PFC SV was initially professional.
She was a shop foreman in appellant’s platoon. As her supervisor, appellant “would
pull her aside” to show her how to do things that were advanced for a shop foreman,
like driving one of the vehicles. Eventually, their relationship turned inappropriate.
Appellant took a subordinate soldier, whom he directly supervised, engaged in sex
with her, called her a “whore and a slut,” demanded she call him by his full rank,
and when she refused, he hit her in the face. Appellant’s conduct became
maltreatment when he choked PFC SV, and while she pleaded for him to stop, he
called her “a slut and a whore.” This was a clear abuse of appellant’s authority over
PFC SV.

Accordingly, we are convinced beyond a reasonable doubt that the
government met all the essential elements of proof to convict appellant of
maltreating PFC SV. Further, we find the evidence factually sufficient to support
appellant’s conviction for maltreating PFC SV.

CONCLUSION

On consideration of the entire record, the findings of guilty and sentence are
AFFIRMED.

Judge RODRIGUEZ and Judge FLEMING concur.

 

(.. . continued)

consent is relevant in determining whether the accused’s actions caused, or
reasonably could have caused, physical or mental harm or suffering. See, e.g.,
United States v. Fuller, 54 M.J. 107, 111 (C.A.A.F. 2000) (finding no maltreatment
between a superior noncommissioned officer and a Private First Class where the sex
was consensual and the subordinate did not feel threatened), overruled on other
grounds by United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009).
PADGETT—ARMY 20180306

FOR THE COURT:

  

MAKCOLM H. SQUIRES, JR.
Clerk of Court

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