UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                               MULLIGAN, FEBBO, and WOLFE
                                  Appellate Military Judges

                            UNITED STATES, Respondent
                                          v.
                           Specialist NICHOLAS L. FROST
                            United States Army, Petitioner

                                       ARMY 20160171

                               Headquarters, Fort Bliss
              Michael J. Hargis and Lanny J. Acosta, Jr., Military Judges
                  Colonel Charles C. Poché, Staff Judge Advocate

For Petitioner: Major Patrick J. Scudieri, JA; Mr. James S. Trieschmann, Jr.,
Esquire (Petition for New Trial).

For Respondent: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Michael E. Korte, JA (Response to Petition for New Trial).


                                       14 February 2018
                   -----------------------------------------------------------------
                                   SUMMARY DISPOSITION
                                ON PETITION FOR NEW TRIAL
                   -----------------------------------------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of raping his daughter, DF, in violation of Article 120b
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §920b (2012). The convening
authority approved the adjudged sentence to a dishonorable discharge, confinement
for ten years, and reduction to the grade of E-1. Appellant filed a petition for a new
trial. We deny the petition. *



*
 Petitioner’s case is currently before the Court on direct review under Article 66(c),
UCMJ. Under Article 73, UCMJ, a petition for a new trial must be filed within two
years of the convening authority’s action in the case. The convening authority
approved the findings and sentence in this case on 10 August 2016. We elect to
decide the petition separately from the direct appeal and issue this opinion without
delay so that appellant receives this decision well within the two year timeframe.
FROST—ARMY 20160171


      As background, petitioner was convicted of raping his biological daughter,
DF, by placing his penis in her mouth. At trial and on appeal, the defense’s case
focused on DF’s allegation of rape being heavily influenced by DF’s mother.

       In the petition for a new trial petitioner provides us with an affidavit from Ms.
Phyllis Brandon. The affidavit recounts a conversation that she had with her
grandson (and petitioner’s son). Ms. Brandon states that her grandson:

             told me that [DF] lied in court about his father SPC
             Nicholas Frost, he told me that she lied in court about his
             father doing anything to his sister [DF], he also told me
             that he overheard his mother telling a friend of hers that
             she had described to [DF] how her father[‘s] private parts
             looked and about the piercing on it, he also said that she
             said that [DF] did very well on the witness stand in court
             remembering what she had told her to say. . . .

       We deny the petition because the facts asserted in the affidavit are not
properly before the court. Ms. Brandon has no personal knowledge of any fact of
consequence. In United States v. Cade, we specifically addressed the standard for
submitting factual matter outside the record. 75 M.J. 923, 928-30 (Army Ct. Crim.
App. 2016). In that case, an attorney from the Defense Appellate Division signed an
affidavit repeating facts that the accused’s wife told her during a phone call. Id. at
928. We framed the issue as follows:

             Before we can address the substance of appellant's
             assigned error, we must first determine whether we can
             consider appellant's submitted affidavit. The affidavit is,
             essentially, a declaration that the affiant heard someone
             else say something. The affiant does not claim to have
             any personal knowledge of any material fact, nor does she
             claim that what she heard is true. Accordingly, we first
             define with some precision what constitutes the record of
             trial on appeal.
             ...
             Here, we have a sworn affidavit. However, the affiant does
             not claim to have personal knowledge of any of the facts
             contained within the affidavit. Rather, the affiant merely
             swears that a witness told her certain facts. The question
             we must answer is whether this is sufficient. The
             government implicitly argues that we should not consider
             the affidavit.

Id. at 928-29.


                                           2
FROST—ARMY 20160171


       We then determined that we could not consider the facts contained in the
affidavit because the affiant had no personal knowledge of those facts.

             We determine that when submitting affidavits on appeal
             the affidavits must be from someone with personal
             knowledge of the material facts in the affidavit. Or, put
             differently, the person whose personal knowledge the
             court is being asked to rely on must be the person who is
             subject to perjury.

Id. at 929. We emphasized that when submitting evidence from outside the record,
the evidence must be submitted “in a manner which this court can digest.” Id.

        In addition to our decision in Cade, as this case involves a petition for a new
trial, petitioner is also bound by Rule for Courts-Martial (R.C.M.) 1210. That rule
requires petitions for new trial to include “[t]he affidavit of each person whom the
accused expects to present as a witness in the event of a new trial. Each such
affidavit should set fourth briefly the relevant facts within the personal knowledge of
the witness.” R.C.M. 1210(c)(9) (emphasis added).

       Here, Ms. Brandon has no personal knowledge of any fact of consequence.
The facts contained within her affidavit are things her grandson told her. Her
affidavit contains hearsay. See generally Military Rule of Evidence 801-803. While
we have no particularized reason to question the integrity of Ms. Brandon, in Cade
we noted that without a requirement for personal knowledge, “an affiant can
truthfully repeat the deliberate deceit of another.” 75 M.J. at 930.

      With no facts on which to rely, we find petitioner has failed to meet his
burden. See R.C.M. 1210(f)(3); See also R.C.M. 1210(f)(2)(C).

      Accordingly, the petition for a new trial is DENIED.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       MALCOLM H. SQUIRES, JR.
                                       Clerk of Court
                                       Clerk of Court




                                          3
