         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201600221
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.
                      LANORRIS D. DANIELS
          Hospital Corpsman Second Class (E-5), U.S. Navy
                             Appellant
                      _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

      Military Judge: Captain Charles N. Purnell, JAGC, USN.
   Convening Authority: Commander, Navy Region Mid -Atlantic,
                            Norfolk, VA.
Staff Judge Advocate's Recommendation: Captain Andrew R. House,
                            JAGC, USN.
 For Appellant: Lieutenant Commander Derek C. Hampton, JAGC,
                                USN.
 For Appellee: Lieutenant Commander Justin C. Henderson, JAGC,
           USN; Lieutenant Robert J. Miller, JAGC, USN.
                      _________________________

                          Decided 13 April 2017
                         _________________________

   Before G LASER -A LLEN , M ARKS , AND F ULTON , Appellate Military
                                Judges
                       _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.

                         _________________________

   GLASER-ALLEN, Chief Judge:
   A military judge sitting as a general court-martial convicted the
appellant, pursuant to his pleas, of aggravated sexual assault of a child,
indecent liberties with a child, and sodomy, in violation of Articles 120 and
                  United States v. Daniels, No. 201600221


125, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920 and 925 .
The military judge sentenced the appellant to 118 months’ confinement,
reduction to pay grade E-1, and a dishonorable discharge. The convening
authority approved the sentence and, pursuant to a pretrial agreement
(PTA), suspended all confinement in excess of four years.
    In two assignments of error (AOE), the appellant asserts the military
judge erred: (1) by admitting portions of the victim’s unsworn statement and
(2) by admitting the same allegedly improper victim evidence as rebuttal
evidence before the appellant had presented any matters in sentencing. After
carefully considering the pleadings and the record of trial, we find no error
materially prejudicial to the substantial rights of the appellant, and affirm
the findings and sentence. Arts. 59(a) and 66(c), UCMJ.
                              I. BACKGROUND
    In May 2008, 13-year-old RR moved to live with the appellant and his
wife, escaping physically abusive and traumatic living conditions in Chicago.
RR was the appellant’s wife’s younger sister. A few months after RR’s arrival
in her new home, the appellant began having sex with her. Over the next five
years, the appellant regularly had oral and vaginal sexual intercourse with
RR, often initiating sex in her bedroom before he went to work in the
morning. When the appellant was deployed, this inappropriate conduct
continued virtually, including his request that RR email him a sexually
explicit video of her masturbating.
   In 2013, RR told her mother about the ongoing sexual conduct. RR’s
mother confronted the appellant’s wife, who soon forced RR to leave the
appellant’s family home. RR was hurt and surprised by her sister’s reaction,
which not only cost her a home but also valued relationships with her sister,
niece, and nephew.
    At trial during the presentencing phase, RR provided a verbal unsworn
statement, pursuant to RULE FOR COURT-MARTIAL (R.C.M.) 1001A, MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2016 ed.) that reiterated part of her
previously provided, written statement:
          I took care of my niece and nephew since they were little. I
      love them like they are my children. My sister doesn’t [let] me
      see them anymore. I’ve lost my sister, my niece and my nephew
      because of you, Lanorris. You took advantage of the terrible
      situation I was in. I only had two choices, go back to Chicago or
      ignore what you were doing to me.
           I will live with what you’ve done to me for the rest of my
      life. For the last three years, you’ve lied and told everyone that
      this didn’t happen. And now you get to pretend to be a man and

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         take responsibility. You would never have taken responsibility.
         You were ready to let people call me a liar and be ashamed [sic]
         upon for the rest of my life. I was labeled as a disgrace. You
         taught me how to read at the same time you molested me. I
         hate you, but I’m forced to think about you every day. I’m still
         confused every day how to think about what has happened to
         me. But I’m [a] survivor. I’m empowered by the horrors of what
         I have to go through every day. But I’m going to get through
         this.1
   Trial defense counsel objected to those portions of the statement that
asserted that the appellant had not taken responsibility for his acts. The
military judge overruled the objection.
                                    II. DISCUSSION
A. Admissibility of the victim’s unsworn statement
    The appellant alleges the military judge erred in admitting that portion of
the victim’s written and verbal unsworn statements related to the appellant’s
“manhood and accusing [the] Appellant of not having taken responsibility for
his actions” as sentencing evidence because it neither met the definition of
victim impact, as defined in R.C.M. 1001A, , nor was it directly related to his
offenses, as required for aggravation evidence under R.C.M. 1001(b)(4).2

   We review a military judge’s admission or exclusion of evidence, including
sentencing evidence, for an abuse of discretion.3 United States v. Stephens, 67
M.J. 233, 235 (C.A.A.F. 2009) (citing United States v. Manns, 54 M.J. 164,
166 (C.A.A.F. 2000)). The military judge’s findings of fact receive deference
and will only be overturned if they are clearly erroneous; we review
conclusions of law de novo. United States v. Owens, 51 M.J. 204, 209
(C.A.A.F. 1999) (citing United States v. Reister, 44 M.J. 409, 413 (C.A.A.F.
1996)).
    Article 6b, UCMJ, delineates the rights of victims and mirrors those
afforded under the Crime Victims’ Rights Act (CVRA), 18 U.S.C § 3771 . As
noted by our sister court in United States v. Wareham, consistent with the
intent of Congress, federal courts have “interpreted these rights to include
giving statements at sentencing hearings without being placed under oath.”

   1   Prosecution Exhibit 4 at 2; Record at 80-81.
   2   Appellant’s Brief of 18 Aug 2016 at 4.
   3  Although the appellee notes that the standard may properly be “plain error,”
given the vagueness of the trial defense counsel’s (TDC) trial objections and the more
specific objection raised on appeal, Appellee’s Brief of 26 Sep 2016 at 15-17, we need
not address this issue, as the appellant’s argument fails under either standard.

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No. ACM 38820, 2016 CCA LEXIS 609, at *14 unpublished op., (A.F. Ct.
Crim. App. 20 Oct 2016).4
    R.C.M. 1001A5 implements a victim’s right to be reasonably heard, giving
a victim the right to make a sworn or unsworn statement during sentencing
in a non-capital case. R.C.M. 1001A(b)(4)(B). The President has broadly
defined the scope of this victim impact testimony as including “any financial,
social, psychological, or medical impact on the victim directly relating to or
arising from the offense of which the accused has been found guilty.” R.C.M.
1001A(b)(2).

    The government may present evidence of “aggravating circumstances
directly relating to or resulting from the offenses of which the accused has
been found guilty,” to include “social, psychological, and medical impact on or
cost to any person or entity who was the victim of an offense committed by
the accused[.]” R.C.M. 1001(b)(4). “The phrase ‘directly relating to or
resulting from the offenses’ imposes a ‘higher standard’ than ‘mere
relevance.’” United States v. Rust, 41 M.J. 472, 478 (C.A.A.F. 1995) (quoting
United States v. Gordon, 31 M.J. 30, 36 (C.M.A. 1990)).

    As noted by the appellee, the language in R.C.M. 1001A, “directly relating
to or arising from the offense,” makes victim impact evidence arguably
broader and more encompassing than government aggravation evidence,
defined as “directly related to or resulting from,” under R.C.M. 1001(b)(4)
(emphasis added). And unlike government sentencing evidence, R.C.M.
1001A evidence is not considered aggravation evidence, and the victim is not
considered a witness for purposes of Article 42(b), UCMJ. R.C.M. 1001A(a).
The evidence presented under R.C.M. 1001A is considered either crime victim
impact or mitigation evidence and is premised solely upon a victim’s right to
be reasonably heard. R.C.M. 1001A(a), (b), and (c). Finally, this right “is


   4 See 150 CONG. REC. S10911 (October 9, 2004) (statement of Sen. Jon Kyl)
(“When a victim invokes this right during plea and sentencing proceedings, it is
intended that he or she be allowed to provide all three types of victim impact: the
character of the victim, the impact of the crime on the victim, the victim’s family and
the community, and sentencing recommendations.”). This right was intended
essentially as “victim allocution” under the CVRA. United States v. Degenhardt, 405
F. Supp. 2d 1341, 1348 (D. Utah 2005).
   See also United States v. Rowe, No. ACM 38880, 2017 CCA LEXIS 89, at *6-9,
unpublished op. (A.F. Ct. Crim. App. 8 Feb 2017); United States v. Parr, No. ACM
38878, 2017 CCA LEXIS 86, at *3-9, unpublished op. (A.F. Ct. Crim. App. 7 Feb
2017).
   5 As amended by Exec. Order 13,696, 80 Fed. Reg. 35,783, 35,807-08 (Jun. 17,
2015).

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independent of whether the victim testified during findings or is called to
testify under R.C.M. 1001.” R.C.M. 1001A(a).
    The appellant argues that the military judge erred by admitting the
victim’s unsworn statement because it did not meet the definition of “victim
impact” under R.C.M. 1001A and therefore was improper sentencing
evidence. He also argues that the admissibility analysis should focus on the
standards set out in R.C.M. 1001(b)(4) for aggravation evidence because “[a]
victim’s unsworn statement during the presentencing phase of the court-
martial is, for all intents and purposes, evidence in aggravation.”6 We
disagree.
    The appellant pleaded guilty to aggravated sexual assault, indecent
liberties, and sodomy of RR, whose statement was admitted over the
appellant’s objection in aggravation and as crime victim evidence under
R.C.M. 1001A.7 In admitting the victim’s written and verbal unsworn
statements, the military judge ruled:
         And I will note, for the record, that I’m considering this an
         unsworn statement and not as a sworn statement and will
         differentiate accordingly. But this statement, I find, falls
         within the meaning of [R.C.M. 1001A], has properly been
         provided to the defense and the court prior to the victim
         making her unsworn statement. I think she has a right under
         Article 6(b) to make an unsworn vice a sworn statement and if
         that’s her election, I’m going to consider this evidence. But I
         can assure you, that I can parse out what is some, a little bit of
         information, about the victim to place these offenses in context,
         and what’s aggravation that directly arises out of this offense.8
    This evidence was both directly related to the offenses and presented
victim psychological impact arising from the offenses of which the appellant
was found guilty. Consequently, we conclude the victim impact evidence was
directly related to the appellant’s crimes and properly subject to RR’s right to
be reasonably heard—thus, it was admissible under both R.C.M. 1001(b)(4)




   6   Appellant’s Brief at 6.
   7 The TDC objected vaguely at trial, arguing that RR’s unsworn statement was “
not related to the accused” and “[t]hen the last paragraph, it makes reference to him
not taking responsibility, things like that. He’s here pleading guilty. He’s taken
responsibility.” Record at 67.
   8   Id. at 70.

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as prosecution aggravation evidence and under R.C.M. 1001A(b)(1) and (2) as
crime victim impact evidence.9
    As noted above, evidence admitted under R.C.M. 1001A is not considered
aggravation evidence, but rather crime victim impact or mitigation evidence,
and is premised solely upon a victim’s right to be reasonably heard. Here the
evidence highlighted the psychological trauma RR went through as she dealt
with removal from her sister’s home and family connection, as well as the
painful skepticism with which her family viewed the allegations given the
appellant’s initial denials. See R.C.M. 1001(b)(4) and R.C.M. 1001A(b)(2)
(stating that both aggravation evidence and the right to be reasonably heard
include evidence of psychological impact on the victim).
B. Improper rebuttal evidence
   In his second AOE, the appellant contends the military judge procedurally
erred by allowing RR’s testimony as rebuttal evidence before the appellant
had presented any matters in presentencing, and that by doing so, he was
essentially compelled to provide evidence because the ruling anticipated his
unsworn statement.10 We disagree.
   The judge ruled in relevant part:
         As to your last objection with respect to your client having
         taken responsibility, I’m sure you’re going to provide evidence
         of that in the defense case and you are free to argue that. I
         think this is perhaps a bit anticipatory, but I believe it’s going
         to likely be appropriate rebuttal and present this from the
         victim’s point of view. And rather than have the victim come up
         and testify twice, in the interest of judicial economy and
         efficiency and considering the fact that, I think this provides
         some information about a counter[]point of view, I’m going to
         admit that.11




   9 As noted by the appellee, pursuant to paragraph 8(d) of the PTA, the appellant

waived any right to object to aggravation evidence or unsworn victim testimony
under R.C.M. 1001(b)(4). Though we resolve the case on other grounds, we note the
waiver’s key relevance to an R.C.M. 1001(b)(4) admissibility analysis involving
unsworn aggravation evidence.
   10  This claim of improper rebuttal argument and supposed resulting compulsion
to testify is raised for the first time on appeal. This argument is misleading because
the appellant’s unsworn statement did not challenge RR’s accusations regarding his
prior denials of the sexual misconduct.
   11   Record at 70.

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     R.C.M. 1001A delinates not only the substance of victims’ statements but
also how they exercise their rights procedurally at courts-martial. A victim’s
right to be reasonably heard is “independent of whether the victim testified
during findings or is called to testify under R.C.M. 1001.” R.C.M. 1001A(a).
Indeed, R.C.M. 1001A(a) explains that when a victim is exercising “the right
to be reasonably heard, the victim shall be called by the court-martial”
(emphasis added). Additionally, R.C.M. 1001A(e) notes a victim’s “unsworn
statement may be oral, written, or both[,]” requires that it be presented
“[a]fter the announcement of findings,” and permits the TC and TDC to “rebut
any statements of facts therein.” (Emphasis added).
    Thus, R.C.M. 1001A(e)(1) specifically permitted RR to present her
unsworn statement after findings and did not require the statement to be
delayed until after the defense’s sentencing case. Notably, R.C.M. 1001A(e)
specifically permits the prosecution or defense to rebut any statements of fact
in the victim’s unsworn statement. Similarly, the military judge was well
within his discretion, in the “interest of judicial economy and efficiency,”12 to
allow RR to speak about the psychological impact of both the appellant’s prior
denials and ultimate admission of guilt once and prior to the defense case.
See R.C.M. 801(a)(3), Discussion (noting that the military judge may
determine “when, and in what order . . . witnesses may testify,” and “should
prevent unneccesary waste of time and promote the ascertainment of truth”).
    Here, despite the appellant’s contention, RR was not preemptively
rebutting the appellant’s unsworn statement, but simply arguing the weight
his pleas should be given in light of his previous denials and the significant
impact they had upon her. Given the circumstances, we find it unlikely that
the military judge was improperly swayed by the timing of RR’s unsworn
statements—and we find it unlikely that he would have been, regardless of
whether it was provided all at once, as it was here, or provided piecemeal
through an initial statement and later rebuttal statement.
    Accordingly, we find the military judge did not abuse his discretion in
allowing the victim to address the court once instead of requiring an initial
unsworn statement followed by a later victim rebuttal.
    Given the intent of R.C.M. 1001A, if the victim desires to be reasonably
heard after findings, the military judge should decide, with the parties’ input,
when that best fits into the sentencing phase. We suggest the military judge
make the record clear that when a victim is heard pursuant to R.C.M. 1001A,
the court, rather than one of the parties, calls the victim. Likewise, calling
the victim first, before the government or defense begins presentencing, may
often be a best practice. Procedurally, this keeps the record clear and easily

   12   Id.

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provides for appropriate rebuttal from the government or defense as
contemplated in R.C.M. 1001A(e).
    Finally, military judges should also consider how to best mark and handle
evidence admitted through R.C.M. 1001A. In most cases, a crime victim
provides impact evidence under the rule via an unsworn verbal statement
after being called by the court. Recognizing there is no specific guidance in
R.C.M. 1001A, when a victim provides an unsworn written statement, we
suggest handling it the same way as a stipulation of expected testimony—
marked as an appellate exhibit and presented in court, but excluded from the
deliberation room.13
                                 III. CONCLUSION
   The findings and sentence are affirmed.
   Senior Judge MARKS and Judge FULTON concur.
                                   For the Court


                                   R.H. TROIDL
                                   Clerk of Court




   13 However, unlike a stipulation of expected testimony, the written statement
would be read aloud to the members by the victim, his or her counsel, or the court
instead of by one of the parties.

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