UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                          TOZZI, CAMPANELLA, and CELTNIEKS
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                         Private E1 NICHOLAS A. YANCEY
                            United States Army, Appellant

                                     ARMY 20120393

       Headquarters, U.S. Army Signal Center of Excellence and Fort Gordon
                         Tiernan P. Dolan, Military Judge
                  Colonel John P. Carrell, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Captain J. Fred Ingram, JA (on brief)

For Appellee: Major Robert A. Rodrigues, JA; Captain Daniel H. Karna, JA (on
brief).


                                     8 December 2014
                                 ---------------------------------
                                 MEMORANDUM OPINION
                                 ---------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of possession of child pornography in
violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (2006)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge and to be confined for eight months. The convening authority approved
the adjudged sentence.

       Appellant’s case is now before this court pursuant to Article 66, UMCJ.
Appellant raises three assignments of error, one of which merits discussion and
relief. As our relief consists of setting aside the findings and sentence, we need not
discuss the other two assignments of error or the matters personally submitted by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
YANCEY—ARMY 20120393

                                  BACKGROUND

    a. Background of the Offenses

       In September 2010, appellant was listening to music on his laptop computer in
his barracks room at Fort Gordon. Appellant’s roommate, Private (PV2) JH, was
enjoying the music and got appellant’s permission to look through appellant’s music
collection on that laptop computer. Private JH began to scroll through appellant’s
music files and noticed some video files. A video file with an “odd” title caught his
attention, so he opened it.

     The video displayed an adult male with his exposed erect penis prodding ,
smacking, and rubbing a naked female toddler child on her genitals with his penis.

       Private JH, disgusted by the contents of the video, confronted appellant and
asked, “[w]hat the hell is this?” Appellant started laughing and responded, “[s]he
looks likes she’s enjoying it.” Appellant then told PVT JH he downloaded the video
from a program called “Lime Wire.” Private JH warned appellant about the dangers
of downloading viruses while using the Lime Wire peer-to-peer file sharing program.
Private JH also told appellant to delete the file. At some point, the file was deleted
from appellant’s computer.

       In November 2010, after speaking with another soldier about seeing the video
on appellant’s computer, PVT JH reported the incident to Criminal Investigation
Command (CID). CID seized and searched appellant’s computer. Three child
pornography videos were found on appellant’s computer and formed the basis of the
sole charge and specification in this case. 1

      According to the government’s expert, o ne suspected child pornography video
was partially downloaded via the “Frost Wire” peer-to-peer program. The expert
could not state what interrupted the download.

        A second suspected child pornography video, fully downloaded via Frost
Wire, was also found on appellant’s computer. The government’s expert also
testified the Frost Wire program was installed on 11 November 2010, and the two
aforementioned videos, along with the third multiplicious preview video, were
downloaded within 30 minutes of the program being downloaded. A third non-active

1
 A fourth video, a “preview” of the fully downloaded video, was found on
appellant’s computer. The military judge viewed the video and determined that
because it was a portion of the full length video already contained in the
specification, it was multiplicious. Hence, he deleted it from the charged offense.




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video was found in the “free space” of the computer’s hard drive among deleted
files. This file had been partially written over by other files since its deletion. CID
was able to recover and extract portions of the deleted file, allowing PVT JH to
identify it as the file he viewed in appellant’s room in September. This was the
video that the government alleged was downloaded via Lime Wire.

       The government’s expert witness also testified that she discovered
approximately 118 pornographic video files in appellant’s Frost Wire folder.
However, in the opinion of the expert, none of these files contained child
pornography. These Frost Wire files were downloaded under the password-protected
username “Nick,” which is a variation of appellant’s first name. Of these files,
approximately 95% had file names associated with child pornography, such as
“child” or “preteen.” However, the expert could not forensically link any search
terms to any Frost Wire files because she could not find any corroborating evidence
of forensic markers establishing that the person at appellant’s computer was the
person typing the search terms. The government’s expert witness further testified
that another person at another computer could “piggyback” search terms on to
appellant’s computer, and that the owner of the computer would not know that his
computer was being piggybacked. 2 As a result of piggybacking, the search terms
from the other computer would be left on the piggybacked computer.

    b. Appellant’s Cross-Examination of PVT JH at Trial

      A primary defense theory at trial was that the child pornography was
unintentionally and mistakenly downloaded from Lime Wire.

      On direct examination, the government asked PVT JH what appellant said to
him after PVT JH discovered the video. Private JH answered that appellant
commented, “she looks like she’s enjoying it.” Neither appellant’s comment nor the
record indicates whether appellant had seen the video before commenting or was
seeing it for the first time and commenting. The government also elicited from PVT
JH that appellant told PVT JH he downloaded the video from Lime Wire.

      On cross-examination, the defense counsel asked PVT JH a series of leading
questions, to which PVT JH overwhelmingly answered in the affirmative. Defense
counsel elicited that PVT JH believed appellant was not very smart about computers.
Defense counsel also established PVT JH held himself out to be knowledgeable
about computers. The defense then asked PVT JH if appellant told him “he was

2
 The government’s expert testified that reason for “piggybacking” is so slower
computers can piggyback onto faster computers “to help speed up connections for
other users that may not have quite as fast an internet connection.”




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YANCEY—ARMY 20120393

clicking on random things on Lime Wire?” The government objected on hearsay
grounds. Defense counsel argued the statement was admissible pursuant to the “rule
of completeness.” Defense counsel cited back to PVT JH’s testimony referencing
appellant’s statement that appellant downloaded the files from Li me Wire. The
military judge then had a puzzling exchange with defense counsel :

            ADC: [Appellant] told you that he had been clicking
            random things on Lime Wire?

            TC: Objection. Hearsay.

            MJ: Sustained.

            ADC: Your honor, it’s a statement - - -

            MJ: Made by whom?

            ADC: It’s made by the accused in this case under the rule
            of completeness of the conversation between [appellant]
            and [PVT JH].

            MJ: What’s your question - - complete your question.

            ADC: [Appellant] told you that he had been clicking
            random things in Lime Wire.

            MJ: In re -- Government?

            TC: Your honor, it’s hearsay.

            MJ: Show me how that goes to the rule of completeness.

            ADC: You’re honor, we’ve already - - -

            MJ: To the one statement so far at issue. She looks - -
            looks like she’s enjoying it.

            ADC: Your honor, the government didn’t object a few
            minutes ago and I accept talking to [ PVT JH] about
            [appellant] said he downloaded these files through Lime
            Wire.

            MJ: But that they didn’t object then . . . is that the
            statement then you’re your trying to complain?



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YANCEY—ARMY 20120393

             ADC: Yes, your honor.

             MJ: Okay. Sustained.

       There is no evidence that anyone else was present in the room when PVT JH
viewed the video and the verbal exchange between appellant and PVT JH took place.
No additional evidence regarding the verbal exchange was presented after the
military judge sustained the objection.

                          LAW AND DISCUSSION

              Did the Military Judge Abuse His Discretion by Refusing
                 to Allow Defense Counsel to Elicit Evidence from
                               a Government Witness?

       Appellant argues on appeal the military judge abused his discretion by failing
to allow PVT JH to fully testify about the conversation PVT JH had with appellant
in the immediate aftermath of the discovery of the video on appellant’s computer.
We agree.

       “We review a military judge’s evidentiary rulings for an abuse of discretion.”
United States v. Gilbride, 56 M.J. 428, 430 (C.A.A.F. 2002) (citing United States v.
Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)). “A military judge abuses his or her
discretion by making findings of fact that are clearly erroneous or reaching
conclusions of law that are incorrect.” Id. If we find error, we review the
prejudicial effect of that error, to include a determination of whether the error was
of a constitutional dimension, de novo. See United States v. Toohey, 63 M.J. 353,
357-358 (C.A.A.F. 2006). “For constitutional errors, the [g]overnment must
persuade us that the error was harmless beyond a reasonable doubt. ” United States v.
Hall, 56 MJ. 432, 436 (C.A.A.F. 2002) (citing United States v. Adams, 44 M.J. 251,
252 (C.A.A.F. 1996)); Chapman v. California, 386 U.S. 18, 24 (1967).

        The “rule of completeness” exists to ensure “that the court is not misled
because portions of a statement are taken out -of-context,” and to avoid “the danger
that an out-of-context statement may create such prejudice that it is impossible to
repair by a subsequent presentation of addition al material.” United States v.
Rodriguez, 56 M.J. 336, 339 (C.A.A.F. 2002) (quoting Beech Aircraft Corp. v.
Rainey, 488 U.S. 153, 171-72 n.14 (1988)).

      Military Rule of Evidence [hereinafter Mil. R. Evid.] 304(h)(2) provides: “If
only part of an alleged admission or confession is introduced against the accused,




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YANCEY—ARMY 20120393

the defense, by cross-examination or otherwise, may introduce the remaining
portions of the statement.” 3 The rule is designed to protect an accused from the
prosecution’s misleading use of excerpts of an admission or confession, and
“permits the defense to introduce the remainder of a statement to the extent that the
remaining matter is part of the confession or admission or otherwise is explanatory
of or in any way relevant to the confession or admission, even if such remaining
portions would otherwise constitute inadmissible hearsay. ” 4 Rodriguez, 56 M.J at
342. The rule requires a case-by-case determination as to whether a series of
statements should be treated as part of the original confession or admission, or as a
separate transaction or course of action for purposes of the rule. Id.

      To be overturned on appeal, the military judge ’s ruling must be “influenced
by an erroneous view of the law.” United States v. Johnson, 62 M.J. 31, 34
(C.A.A.F. 2005). In deciding whether an abuse of discretion occurred, Rodriguez
provided several non-exhaustive factors to consider:

             (1) Has the prosecution attempted to “pick out the
             incriminating words in the statement or discussion and put
             them in evidence while at the same time excluding the
             remainder of the statement or conversation, in which the
             appellant sought to explain the incriminating passages ?”

             (2) Is the appellant’s subsequent statement separate and
             unrelated from the subject matter of the original
             confession, or is it part of or the product of the same
             transaction or course of action?

             (3) What is the elapsed time between the two statements,
             and were they made at different places and to a different
             set of persons?

             (4) Was the second statement made at the specific request
             of the appellant or the government?

3
 The relevant rule is now Mil. R. Evid. 304(h). See Exec. Order 13,643 78 Fed.
Reg. 29,565 (May 21, 2013). The text of the rule has not changed.
4
  Mil. R. Evid. 304(h)(2) is unique to military practice and has no corresponding rule
in the Federal Rules of Evidence. Both the military and federal rules have a general
rule of completeness for written and recorded statements. See Mil. R. Evid. 106.
Mil. R. Evid. 304(h)(2) is broader and is not limited to written or recorded
statements.




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YANCEY—ARMY 20120393


             (5) Was the defense invoking the rule of completeness as a
             matter of fairness, or merely attempting to present
             evidence of a defense without subjecting the appellant to
             cross-examination?

             (6) Did the appellant engage in a “pattern of deception with a
             variety of persons, and then argue that belated candor in a
             different setting justifies the introduction of otherwise
             inadmissible hearsay”?

Id. at 341-43 (citing United States v. Harvey, 8 U.S.C.M.A. 538, 546-548, 25
C.M.R. 42, 50-52 (1957)).

       In this case, the follow-on statement defense attempted to solicit from PVT JH
was part of the same conversation PVT JH had with appellant. The conversation is
not separate or unrelated in substance, time or setting. The military judge
inaccurately stated one statement so far at issue is “[s]he looks - - looks like she is
enjoying it.” There is also the statement from PVT JH that appellant told him he
downloaded the video from Lime Wire. Defense counsel was trying to complete or
give context to the statement regarding the download from Lime Wire.

      While the military judge’s ruling inherently precludes us from discerning how
PVT JH would have answered the question, we are concerned that PVT JH may have
provided information that could support appellant’s defense theory that the
download of the suspected child pornography was unintentional and may have never
even been viewed by appellant. Furthermore, given the leading questions and the
overwhelmingly affirmative answers from PVT JH, it is apparent from the context in
which the questions were asked that PVT JH would likely answer “yes” to the
question at issue. See Mil. R. Evid. 103(a)(2) (requiring the substance of the offered
evidence to be before the military judge in the context of excluding evidence).

       The factor weighing in favor of exclusion of the statement is that the
appellant would have been able to present evidence of his defense without subjecting
himself to cross-examination. Although that is accurate, the complete statement by
appellant may have provided a greater explanation about whether appellant
intentionally downloaded the video than the incomplete statement offered and
admitted by the government. This factor weighs in favor of admission of the
statement. The government offered part of the statement in the first instance,
prompting the defense to seek fairness through completion.

       The rule of completeness exists to address the very situation that unfolded at
trial. “The rule of completeness is neither a sword w hich the accused might
introduce evidence to avoid the crucible of cross -examination, nor a shield behind



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which the true nature of an accused’s admissions may be hidden.” United States v.
Foisey, 69 M.J. 562, 567 (N.M. Ct. Crim. App. 2010). We find it was error for the
military judge to sustain government’s objection. To the extent the exchange
between the military judge and defense counsel was confusing, the military judge
should have clarified the offer of proof. Because of the ruling, appellant may have
been precluded from providing evidence in his defense.

       If a military judge errs by excluding evidence, we next determine whether the
error materially prejudiced the substantial rights of the accused. Johnson, 62 M.J. at
35; UMCJ art. 59(a). Because the ruling purportedly deprived the appellant of the
opportunity and right to provide evidence in his defense, under these facts, we view
the error as one of constitutional dimension. See United States v. Garcia, 44 M.J.
27, 32 (1996). In United Stated v. Benton, 57 M.J. 24 (C.A.A.F. 2002), our superior
court upheld this court’s decision that the trial judge erred in excluding follow-on
exculpatory testimony pursuant to the rule of completeness , but found the error
harmless because appellant suffered no material prejudice. This case is
distinguishable in that Benton was not deprived of his constitutional right of
presenting a defense because he was allowed to present his defense through other
evidence. Here, appellant did not take the stand. Appellant’s only available means
to get this evidence before the fact finder without personally testifying was through
cross-examination of PVT JH. Put another way, this evidence was “material” and
“vital” to appellant’s defense. See Hall, 56 M.J. at 437 (“A ruling excluding
evidence is not constitutional error unless the evidence is ‘material or vital.’”)
(quoting United States v. Ndanyi, 45 M.J. 315, 321-22 (C.A.A.F. 1996)); see also
Garcia, 44 M.J. at 31.

       For constitutional errors, the government must persuade us that the error was
harmless beyond a reasonable doubt. Hall, 56 M.J. at 436. In our view, the
admissible evidence in the government’s case was not so overwhelming to make this
error harmless beyond a reasonable doubt. “The test for determining if the
constitutional error is harmless is ‘whether it appears ‘beyond a reasonable doubt
that the error complained of did not contr ibute to the verdict obtained.’’” United
States v. MacDonald, 72 M.J. 426, 434 (C.A.A.F. 2014) (quoting United States v.
McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002); Chapman v. California, 386 U.S. 18, 24
(1967)). The defense’s theory is plausible and supported by some evidence. The
materiality of the excluded statement is central to the defense theory of appellant
unintentionally downloading the child pornography videos. The ruling allowed the
prosecution to present an incomplete account of appellant’s sta tements. Depending
on the information solicited, the military judge could have concluded appellant
unintentionally downloaded the material.

      We have examined the impact of this error on all three video files of child
pornography. Appellant made the incomplete statement at issue after PVT JH
confronted him in September 2010. The statement at issue was vital to appellant’s



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defense that he unintentionally downloaded the video and was made immediately
after PVT JH discovered the video. In our view, omission of that evidence may have
contributed to the verdict relating to that video.

       A different, closer question is whether the omission of the evidence might
have contributed to the verdict relating to the two Frost Wire files of child
pornography downloaded in November 2010. These files were downloaded several
months after PVT JH witnessed the child pornography and told appellant to delete it,
raising an inference that appellant knowingly downloaded the second batch of child
pornography. Furthermore, the file names of the other Frost Wire files raise an
inference of appellant’s intent and lack of mistake. The evidence, however, still
reveals that appellant was not very smart about computers. The fact finder should
have been able to weigh those potentially i nculpatory inferences against the
potentially exculpatory complete statem ent. Ultimately we are not convinced
beyond a reasonable doubt that the error did not contribute to the verdict extending
to the November 2010 Frost Wire files, as well as the file viewed by PVT JH.
Accordingly, we will set aside the finding of guilt y for possessing child
pornography.

                                  CONCLUSION

       On consideration of the entire record, the findings of guilty and the sentence
are set aside. A rehearing is authorized. All rights, privileges, and property, of
which appellant has been deprived by virtue of the findings and sentence, hereby set
aside by this decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a).

      Senior Judge TOZZI and Judge CELTNIEKS concur.


                                       FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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




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