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

                                Before
            F.D. MITCHELL, J.A. FISCHER, K.M. MCDONALD
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                     EDWIN W. HINOJOS
       CHIEF CRYPTOLOGIC TECHNICIAN INTERPRETIVE (E-7),
                          U.S. NAVY

                           NMCCA 201300305
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 7 March 2013.
Military Judge: LtCol Charles Hale, USMC.
Convening Authority: Commandant, Naval District Washington,
Washington Navy Yard, Washington, DC.
Staff Judge Advocate's Recommendation: LCDR J.D. Pilling,
JAGC, USN.
For Appellant: CAPT Tierney Carlos, JAGC, USN.
For Appellee: Maj David Roberts, USMC; Capt Matthew Harris,
USMC.

                            27 January 2015

     ---------------------------------------------------
                     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:

     A general court-martial consisting of officer and enlisted
members convicted the appellant, contrary to his pleas, of one
specification of aggravated sexual assault of a child and one
specification of abusive sexual contact of a child, in violation
of Article 120, Uniform Code of Military Justice, 10 U.S.C.
§ 920. The members sentenced the appellant to confinement for
seven years and a dishonorable discharge. The convening
authority approved the sentence as adjudged, and, except for the
dishonorable discharge, ordered the sentence executed.
     The appellant raised eight assignments of error. 1 After
careful consideration of the record of trial, the appellant's
assignments of error, the pleadings of the parties and oral
argument, we find merit in the appellant’s first assignment of
error, and will take remedial action in our decretal paragraph. 2
                                 Background

     HC was a 14-year-old high       school freshman and good friends
with the appellant’s daughter,       DH. HC slept over at the
appellant’s house nearly every       weekend during the spring of
2011, including the weekend of       24 April 2011. Whenever HC spent

1
  (1) That the military judge erred when he allowed the Government’s DNA
expert to testify that he received a buccal swab from the appellant when the
appellant’s buccal swab was not admitted into evidence and there was no
testimony that a buccal swab was ever obtained from the appellant. Likewise,
the military judge erred when he admitted Prosecution Exhibit 2 into evidence
over defense objection.

(2) The military judge erred when he allowed HC to testify to inadmissible
hearsay which suggested to the members that the appellant was sexually
abusing his own daughter.

(3) The military judge abused his discretion when he denied the defense
challenge for cause against LT G without considering the liberal grant
mandate and for not sua sponte challenging ENS K.

(4) The evidence was factually and legally insufficient to sustain the
appellant’s convictions.

(5) The military judge abused his discretion when he provided contradictory
and misleading answers to the members’ questions during sentencing and by
failing to give a tailored spillover instruction.

(6) Trial defense counsel was ineffective.

(7) The appellant is currently the subject of post-trial cruel and unusual
punishment for failure to treat his alleged post-traumatic stress disorder.

(8) The appellant was subjected to post-trial cruel and unusual punishment
because he suffered hearing loss as a result of being denied protective gear.

The appellant’s seventh and eighth assignments of error are raised pursuant
to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
2
  Our corrective action renders assignments of error 2, 3, 5, and 6 moot.    We
have considered assignments of error 7 and 8 and find them to be without
merit. United States v. Clifton, 35 M.J. 79 (C.M.A. 1992).
                                      2
the night at the appellant’s house, she shared DH’s bed with
her. On 24 April 2011, after watching a movie, the two girls
went to bed around 2300. HC slept on her right side with her
back to the bedroom door and her feet at the opposite end of the
bed from DH’s head. She wore her own bra and underwear to bed,
but borrowed a pair of DH’s pajama pants and shirt.
     HC testified that in the middle of the night, she awoke to
the feeling of a hand on the left side of her chest. She
further testified that the individual then climbed onto the bed,
put his hand down the front of her pants and underwear, and
penetrated her vagina with his finger up to the point of his
knuckle. Throughout this incident, HC never saw the
individual’s face, however, she identified him as the appellant
by the feeling of his “big belly” against her back, and the
feeling of his thick, rough hands 3 on her body. HC also
testified that she heard the individual say “what” before he
left DH’s room and recognized the appellant’s voice. According
to HC, the appellant had also touched her inappropriately on
three previous occasions when she slept over at his house. In
the first incident, HC awoke to a hand on the right side of her
chest; in the second, she awoke to fingers on the inner part of
her legs, above her jeans; and in the third incident, she awoke
to the feeling of fingers on her vagina, above her clothing. HC
identified the appellant as the person who touched her in the
first incident because she heard him say “beautiful.” HC
reported the 24 April assault to her family, then later to the
Naval Criminal Investigative Service (NCIS).
     Additional facts necessary to resolve the assigned errors
are included herein.
                     Legal and Factual Sufficiency

     We review questions of legal and factual sufficiency de
novo. United States v. Winckelmann, 70 M.J. 403, 406 (C.A.A.F.
2011). We review the legal sufficiency of the evidence by
determining “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, this court is

3
  HC had a prior dating relationship with SH, the appellant’s oldest son who
also lived in the appellant’s household at the time of the alleged incidents.
HC testified that SH’s hands were thin and bony and distinguished the hands
that touched her as thick and rough.
                                      3
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) (citations omitted), aff'd, 64 M.J. 348 (C.A.A.F. 2007).

     The term “reasonable doubt” does not mean that the evidence
must be free of any conflict. Id. And when weighing the
credibility of a witness, this court, like a fact-finder at
trial, examines whether discrepancies in witness testimony
resulted from an innocent mistake such as a lapse of memory or a
deliberate lie. United States. v. Goode, 54 M.J. 836, 844
(N.M.Ct.Crim.App 2001). Additionally, the members may "believe
one part of a witness' testimony and disbelieve another." United
States v. Harris, 8 M.J. 52, 59 (C.M.A. 1979).
     Applying the above test to this case, we are convinced that
the evidence was both legally and factually sufficient.
                        Expert Witness Testimony

     In his first assignment of error, the appellant asserts the
military judge abused his discretion by permitting the
Government’s expert witness to testify that the DNA contained on
a buccal swab matched the DNA found in the victim’s underwear,
without the proper foundation to testify that the buccal swab
was taken from the appellant. The appellant also argues the
military judge erred in admitting Prosecution Exhibit 2 4 into
evidence over defense objection. We agree.
The Law
      Decisions of a military judge to admit or exclude evidence
are reviewed for abuse of discretion. United States v.
Eslinger, 70 M.J. 193, 197 (C.A.A.F. 2011). A military judge
abuses his discretion when the “findings of fact are clearly
erroneous or his conclusions of law are incorrect.” United
States v. Baker, 70 M.J. 283, 287 (C.A.A.F. 2011) (citation and
internal quotation marks omitted). A military judge is
responsible for serving as a “gatekeeper” in screening evidence
for admission, specifically scientific evidence such as DNA
results. General Electric Co. v. Joiner, 522 U.S. 136, 142
(1997). Authentication is a condition precedent to
admissibility, that is “satisfied by evidence sufficient to
support a finding that the matter in question is what its
proponent claims.” MILITARY RULE OF EVIDENCE 901(a), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.).

4
  Prosecution Exhibit 2 was HC’s underwear and the relevant chain-of-custody
documents.


                                      4
     MIL. R. EVID. 702 allows the admission of expert opinion
testimony if it will assist the trier of fact in understanding
the evidence or to determine a fact in issue. Experts can offer
their opinion or make an inference based on facts or data
obtained by the expert at or before trial, so long as the facts
or data are “of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the
subject . . . .” MIL. R. EVID. 703. The expert opinion is
admissible even if the relied upon facts or data are not. Id.
Discussion
     At the trial, the Government called a DNA expert to discuss
his work on the case. The expert discussed his laboratory’s
chain-of-custody protocol for evidence and the tests he
conducted in this particular sexual assault case. The expert
was then asked whether there was a service member associated
with the case, to which the expert provided the appellant’s
name. The trial judge initially sustained trial defense
counsel’s objection as to the witness’s identification of the
appellant on hearsay and foundation grounds. Following that
ruling, Government counsel established that the expert recorded
his test findings and generated a report for this particular
investigation. Government counsel again asked the expert
whether there was a service member associated with the buccal
swab submitted for testing, to which defense counsel objected as
to lack of foundation. The objection this time was overruled,
and the expert subsequently testified that he tested a buccal
swab from the appellant and found a match between the
appellant’s Y-STR 5 DNA profile and HC’s underwear. Record at
390-97. The buccal swab itself was never offered as evidence
and there was no evidence presented to establish that this
buccal swab was actually obtained from the appellant.
     The Government bears the burden of establishing adequate
foundation for admission of evidence against an accused. United
States v. Maxwell, 38 M.J. 148, 150 (C.M.A. 1993) (citing United
States v. Gonzales, 37 M.J. 456 (C.M.A. 1993)) (additional
citations omitted). Though MIL. R. EVID. 703 permits expert
witnesses to offer an opinion or make an inference based on
underlying facts that otherwise may be inadmissible, that
testimony remains subject to fundamental evidentiary foundation
requirements. The Government’s expert testified about the tests
he conducted on a buccal swab purportedly belonging to the
5
  Y-STR DNA testing does not produce a DNA profile unique to an individual.
This type of testing narrows DNA down to a male individual’s paternal line,
which can then be tested for the probability of detecting that profile
against a person randomly selected from the United States population.
                                      5
appellant and offered the opinion that there was a DNA match
between the DNA on that buccal swab and the victim’s underwear.
He did so without the Government having laid any foundation
before, during, or after the expert’s testimony to establish
that the swab had actually been collected from the appellant.
Authenticity must be established prior to admission of evidence,
whether that evidence is in the form of testimony or physical
evidence. Additionally, the proponent of that evidence must
present evidence sufficient to support a finding that the
evidence is what it purports to be. In the present case, that
is, that the buccal swab was taken from the appellant. Absent
that conditional authenticity requirement, the risk of prejudice
and confusion of the finder of fact is too great to allow
admission.
     In the appellant’s case, the Government failed to provide
authenticity evidence for the buccal swab allegedly belonging to
the appellant. The source and authenticity of the buccal swab
was required before the expert could offer an opinion as to a
DNA match involving that swab. Accordingly, we hold that the
military judge, without such foundation evidence, abused his
discretion in allowing the expert to testify that he tested the
DNA found in HC’s underwear to the DNA from the buccal swab
purportedly belonging to the appellant and that there was a
match.
     Having found error in the admission of the expert
testimony, we now assess for prejudice. “Whether an error,
constitutional or otherwise, was harmless is a question of law
that we review de novo.” United States v. McCollum, 58 M.J.
323, 342 (C.A.A.F. 2003) (citations omitted). “A finding or
sentence of court-martial may not be held incorrect on the
ground of an error of law unless the error materially prejudices
the substantial rights of the accused.” Art. 59(a), UCMJ.
Because this case involves a nonconstitutional error, it is the
Government’s burden to demonstrate that “the error did not have
a substantial influence on the findings.” McCollum, 58 M.J. at
342.
     We evaluate whether the erroneous admission of Government
evidence is harmless through a four-part test that weighs: “(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.” United States
v. Berry, 61 M.J. 91, 98 (C.A.A.F. 2005).
     To prove its case, the Government called four witnesses:
the alleged victim (HC), an NCIS Special Agent, a DNA expert,

                                6
and the appellant’s son. Through HC’s testimony, the Government
established that she slept at the appellant’s house on various
occasions and that the appellant had touched private parts of
her body while she was sleeping on four occasions. HC
identified the appellant as the offender based on several
characteristics – his “big belly”, “thick fingers”, and voice. 6
The NCIS agent’s testimony was limited, only covering her
attendance at HC’s sexual assault forensic examination and her
collection of HC’s underwear at that examination. As previously
discussed, the DNA expert offered his opinion of a match between
the DNA found on HC’s underwear and the DNA found on the buccal
swab he believed to be from the appellant. The Government also
entered HC’s underwear as evidence during the expert’s direct
examination. Finally, the appellant’s son described his
previous dating relationship with HC 7 and testified that he
kissed her on the cheek while they dated, but otherwise never
engaged in any sexual contact or act with HC, and did not come
into contact with HC’s underwear that night or any other time.
      The defense case relied on creating reasonable doubt as to
the identification of the appellant as the assailant through
cross-examination of Government witnesses. Trial defense
counsel attacked the lack of evidence brought forward to
establish the appellant’s identity during her objections in the
Government’s case in chief, her cross-examination of the
Government’s DNA expert, and also in a RULE FOR COURT-MARTIAL 917,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) motion. The
defense also called a child forensic psychologist to provide
expert testimony attacking the truth and accuracy of HC’s
allegations.
     The third factor to consider in our prejudice analysis is
the materiality of the evidence in question. Here, that is the
Government expert’s testimony regarding a DNA match. The
expert’s testimony established that DNA from the appellant’s
paternal line was found on HC’s underwear and strongly supported
HC’s testimony. The evidence essentially eliminated the
possibility that a sexual assault did not occur and narrowed
down the possible offenders to just two individuals. We find
the materiality of this forensic evidence was significant as was
certainly emphasized by the Government during closing argument.
Record at 574-75. We reject the appellee’s claim that the
appellant’s “conviction was assured even without the DNA

6
  HC testified that on two separate occasions, she heard the person who
entered the room where she was sleeping say both “what” and “beautiful.”
7
    The alleged incidents occurred after HC and the appellant’s son broke up.
                                        7
evidence.” Government Brief of 9 Apr 2014 at 17. While it is
possible that a reasonable fact-finder could have convicted the
appellant without the DNA evidence, this situation involves
scientific evidence admitted in error whose influence on the
fact-finder by its nature would have been significant. Without
the powerful DNA evidence lending support to CH’s identification
of the appellant as her assailant, the members may well have
concluded that there was a reasonable doubt as to the
appellant’s guilt.
     The fourth factor in our prejudice analysis is the quality
of the evidence in question. Here, as discussed above, the
Government offered expert testimony referencing a tested
evidence sample never admitted at trial. Through reference to
that sample, the expert was allowed to testify that the
appellant’s DNA matched DNA found on the victim’s underwear,
thereby providing identification evidence. The form of DNA
testing used here, Y-STR, is not as specific as autosomal
testing, but even this lower-quality DNA test enabled the
Government to convince the fact-finder of the appellant’s guilt
beyond a reasonable doubt.
     The record of trial depicts a case in which forensic
evidence served as significant proof that a crime occurred and
identified the appellant as the perpetrator. The Government has
not met its burden of demonstrating that judicial error in
admitting expert testimony without the underlying foundation did
not have “a substantial influence on the findings.” McCollum,
58 M.J. at 342. Accordingly, the findings of guilty to the
charge and two specifications are set aside. The record of
trial is returned to the Judge Advocate General for remand to an
appropriate convening authority with a rehearing authorized.
                                For the Court



                                R.H. TROIDL
                                Clerk of Court




                                8
