

   
   
   
   U.S. v. Armstrong



IN THE CASE OF
UNITED STATES, Appellee
v.
Michael R. ARMSTRONG, Master Sergeant
U.S. Army, Appellant
 
No. 99-0256
Crim. App. No. 9601966
 
United States Court of Appeals for the Armed
Forces
Argued January 11, 2000
Decided June 1, 2000
GIERKE, J., delivered the opinion of the
Court, in which
EFFRON, J., and COX, S.J., joined. CRAWFORD,
C.J.,
and SULLIVAN, J., each filed a dissenting
opinion.
Counsel
For Appellant: Captain Katherine A. Lehmann
(argued); Colonel Adele H. Odegard, Major Scott R. Morris,
and Major Jonathan F. Potter (on brief); Colonel John T. Phelps
II, Captain Leslie A. Nepper, and Captain John C. Einstman.
For Appellee: Major Patricia A. Ham
(argued); Colonel Russell S. Estey (on brief); Captain Marcella
Edwards-Burden.
Military Judge: Linda K. Webster


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 

Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer
and enlisted members convicted appellant, contrary to his pleas, of 6 specifications
of committing indecent acts with his daughter, in violation of Article
134, Uniform Code of Military Justice, 10 USC § 934. The court-martial
sentenced appellant to a dishonorable discharge, confinement for 8 years,
total forfeitures, and reduction to the lowest enlisted grade. The convening
authority approved the sentence but suspended confinement in excess of
2 years for 2 years.
In an unpublished opinion, the Court of Criminal
Appeals set aside the convictions of 3 specifications, and it dismissed
those specifications on the ground that the evidence was factually insufficient
under Article 66(c), UCMJ, 10 USC § 866(c). The court affirmed the
convictions of the 3 remaining specifications, reassessed the sentence,
and reduced the period of confinement from 8 to 5 years.
Our Court granted review of the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS
ERRED WHEN IT HELD THAT THE TESTIMONY GIVEN BY A GOVERNMENT EXPERT ON REBUTTAL
WAS IMPROPER, BUT HELD THAT THE ERROR WAS HARMLESS.

For the reasons set out below, we reverse.

Factual Background
The prosecution case-in-chief consisted of
the testimony of appellants natural daughter, CA; Lieutenant (Lt) Goss,
a member of the Watertown, New York, Police Department; and a written statement
executed by appellant in response to questioning by Lt Goss.
CA was 17 years old at the time of appellants
trial, conducted between September 30 and November 22, 1996. The offenses
affirmed by the court below were alleged to have been committed between
December 15, 1994, and May 28, 1996. CA shared a bedroom with her twin
sisters, NA and AA, who are 5 years younger than CA. CA slept on the top
bunk of a bunk bed; NA and AA slept on the bottom bunk.
CA testified that she did not use an alarm
clock to awaken, because it would awaken her twin sisters. Instead, she
depended on appellant to awaken her in the morning before he went to work.
She testified that when appellant first began awakening her, he would shake
her and rub her shoulder. She testified that he would hoist himself on
the bunk bed railing, "half off and half on," but that "he got tired of
it or something" and began climbing onto the bed. She testified that appellant
sometimes lowered himself over her open hand so that his penis was in her
open hand. When he did so, he was wearing underwear and CA was wearing
a shirt and panties. CA testified that she could not remember how many
times appellant lowered himself into her hand, but it was "infrequent."
CA testified that she pretended to be asleep.
CA also testified that she recalled appellant
nibbling her ear, kissing her face, and rubbing her shoulders under her
shirt. She testified that when he rubbed her shoulders, "he was very careful
not to -- you know, touch anything there." She believed that appellant
"made a point" to avoid touching her breast area when he had his hand under
her shirt.
CA testified that she could not remember how
long appellant would rub her arms and shoulders. She explained, "When youre
asleep, you dont have very much concept of time." She testified that she
pretended to be asleep, "because usually Im like -- when he wakes me up,
Im half asleep or something." (R. 165)
Trial counsel then asked CA, "[W]hat else would
your father do?" She responded, "Thats basically it." Only after trial
counsel refreshed her memory with a statement she gave the Watertown police
did she testify that appellant would sometimes lie down facing her, "[w]ith
his hip area on [her] hip area." She testified that while appellant was
in that position, he would rub his penis "right on the juncture of [her]
thighs." She was wearing a shirt and underwear, and appellant was wearing
underwear. She pretended to be asleep. As with her other testimony, she
could not remember how long appellant would lie in bed with her. CA testified
that she did not tell appellant to stop touching her. Instead, she tried
to indirectly stop him by telling him that she did not need him to awaken
her any more.
On cross-examination, CA testified that she
has difficulty remembering details, but that she remembers "big things
that happened." She testified that she was an avid reader of romance novels,
liked to write poetry, and hoped to be a writer some day. She testified
that she never told her mother or her sisters that appellant was touching
her inappropriately. CA also testified that appellant sometimes would lie
beside her, put his arms around her, and "cuddle," without doing anything
inappropriate.
On redirect examination, CA testified that
she never told appellant she was awake when he was doing the inappropriate
acts she described. Asked to explain why, she testified, "Because if --
cause he could have -- because something like that could have happened
more that I dont want to think about right now. He could have went berserk
or something. I dont know." On recross, CA admitted that even when appellant
was angry with her for misbehaving, he "wasnt really berserk," but it
was the closest to "berserk" she had ever seen. She testified that appellant
"hardly ever gets mad."
Lt Joseph Goss testified that he interviewed
appellant after receiving a report of possible sexual abuse from the Jefferson
County Child Protective Service. According to Lt Goss, when appellant was
advised of the allegations of inappropriate behavior with his two oldest
daughters, he orally "indicated that the nature of the allegations were
true, and that he believe[d] he had used poor judgment." Appellant agreed
to reduce his oral statement to writing.
Appellants written statement included the
following narrative:



Concerning the reason that I am at the police
station: Since I have thought about what has been said I would like to
state that I have used poor judgment. My actions which are the basis of
this complaint were never meant to give me sexual gratification or injure
my daughters. As for the statement about me touching [CAs] chest/breasts
I have possibly touched them by accident while giving her a massage.
In the morning before going to work I would
occasionally enter [CAs] bedroom and give her a kiss good-bye. Sometimes
I would also massage her shoulders, neck and I accidently touched her where
she did not feel comfortable. At no time did [CA] indicate that she did
not like this or ask me to stop until last Thursday May 23rd.
Some time ago there was also an incident where my penis touched [CAs]
hand. This was not intentional, but I was in my underwear and I was massaging
her. One of us moved and my penis went across her hand. Again this was
an accident.
Lt Goss has also asked me about my 15-year-old
daughter [CL]. There were also occasions when I would go into her room
and kiss her. This is also a similar situation where I would be leaving
for work and saying good-bye. To the best of my knowledge I did not think
that she did not like this or felt it was inappropriate. This was never
meant to hurt my daughters.
. . . I also would like to add that I have
entered my 11-year-old twins room to kiss them good-bye, but because they
usually sleep back to back and are normally asleep I did not want them
to wake up an hour and a half early so I would only kiss them.
In closing I would like to say that my actions
were never meant to hurt, injure or scare anybody. If I had realized that
the girls did not like this I would not have continued. I do love my family
a great deal and will do anything to help keep my family together. I am
willing to go to counseling or attend any program as directed by the Family
Court.



The defense theory was that appellant was a devoted,
affectionate father, and that CAs accusations were nothing more than "the
ambiguous statements of a troubled young girl." The defense case-in-chief
consisted of the testimony of appellants wife, 15-year-old daughter (CL),
one of the 12-year-old twins, and a psychologist who evaluated CA.
Appellants wife of 21 years testified that
she suffered from several medical conditions that cause shaking and dizziness.
One of the twin daughters has hypotonic cerebral palsy, requiring that
she be constantly monitored. Because of his wifes and daughters medical
conditions, appellant became very involved in caring for their daughters
and assisting with the household chores. The family uses a term, "CHS,"
that stands for cuddles, hugs, and snuggles, to describe what they like
to do at bedtime and in the morning. Appellants wife testified that all
their daughters love massages, and they frequently ask their parents for
back rubs.
Appellants wife testified that around Halloween
of 1994, shortly before the dates on which the offenses were alleged to
have been committed, CA had a sexual relationship with a boyfriend, and
she began withdrawing from "her affections towards the rest of us in the
family." Asked about her opinion of CAs truthfulness, appellants wife
testified that "she gets so wrapped up with her books and very involved
in her TV programs, that sometimes [she] wondered if [CA] gets her reality
and her fantasies mixed up."
Appellants wife described appellant as a very
loving, very attentive father. She testified, "Hes always been there for
the girls. He got to see them born and -- which he was ecstatic about.
Hes always very helpful. Hes always willing to listen to them, to be
there for them, whatever needs that need to be met at that time, and I
wouldnt trade him for the world."
On cross-examination, appellants wife testified
that the door was always open when appellant went into CAs room to hug
her. She testified that most of the time appellant was wearing Army physical
training clothes. She admitted that there were times when he wore only
underwear and a T-shirt, "but hes done that all their lives."
Appellants 15-year-old daughter, CL, testified
that appellant sometimes would awaken her with a "snuggle" or a massage.
Appellant would spend "a few minutes" with her, during which "hed say
goodbye real quick, or if he had enough time, he would snuggle a little
bit." She did not remember what he was wearing. Asked if appellant ever
touched her improperly, she responded, "Maybe accidentally."
CL testified that CA had been "pretty truthful"
during the "last few years," but she "wasnt real truthful" when she was
younger. CL described CA as "a dramatic person" and "very emotional." She
testified that CAs fellow high school students either "think shes really
nice or shes weird."
Appellants 12-year-old daughter, AA, testified
that appellant normally came into their room at about 6:00 a.m., tapped
them on the back and said, "Im leaving for work now, bye, I love you."
He usually kissed them. There were times when he would lie in bed with
AA and her twin sister. Sometimes he would be dressed in a T-shirt and
shorts and sometimes he would be wearing a jogging suit. AA testified that
she liked it when appellant came into her room in the morning.
Community Mental Health Services at Fort Drum,
New York, referred CA to Dr. Gina Scarano-Osika, a licensed psychologist,
for treatment. Dr. Scarano-Osika interviewed CA a number of times and conducted
psychological testing. She concluded that CAs perceptual capacity was
unflawed, but that she "may be prone to perceptual inaccuracies." She also
concluded that CA had a history of getting very involved in the lives of
television characters and that "she had a nonconventional way of acting
interpersonally."
On cross-examination, Dr. Scarano-Osika testified
that CA did not suffer from hallucinations or a "psychotic-like or schizophrenic-like
problem." Based on CAs use of fictional characters as an escape, Dr. Scarano-Osika
concluded that CA has an acute stress disorder that causes a dissociative
reaction. She defined a dissociative reaction as "when someone pulls back
from themselves or feels like theyre somebody different or identifies
with someone different."
Appellant testified in his defense. He described
his military career beginning with his enlistment in December 1973. He
described his family life and his courtship and marriage, and the birth
of his daughters, CA and CL. During the early 1980s, after CL was born,
appellant began visiting his daughters before going to work, making sure
that they were covered up, and he would "give them a little quick kiss
goodbye, maybe a little hug, something along those lines." Asked how he
would describe his demonstration of affection towards his children, appellant
testified,



I used -- we used to hug them all the time.
I mean, until I was no longer allowed contact with them [as a result of
the charges]. I still hug them every day. I hug them and hold them. They
sit on my lap, they come climb on my lap when Im sitting down. Very affectionate,
sir.



Appellant testified that in the morning, he would
sit down next to them, "give them a little hug," give them a back rub,
or lie down next to them and "cuddle or snuggle together." Asked to explain
why he did these things, appellant testified that he did them "to share
some time with them." He explained:



I mean, I get home -- even if I got home
somewhat early, theres still all those evening things that need to be
done. Theyve -- theres dinner thats got to be prepared. I prepared dinner
a fair amount of the time. They had homework that they had to do, and [CA]
and [CL] especially asked me to help them with their homework -- and [AA]
sometimes. So, there was dinner to do and homework to help them with. I
had my laundry to do. If they had laundry that needed to get done, I did
that a fair amount of the time. And -- so, theyve got to eat, theyve
got to finish their homework, and so then generally, its about time for
them to be getting ready for bed. So, I didnt have a lot of time to spend
with them in the evenings. So in the morning, Id try and spend a little
bit of time with them to make me -- me feel better about the time I cant
spend with them, and to -- just kind of start their day off with -- with
a warm feeling that they know that -- even if they cant remember that
their dads been there, they know that -- that I come in and I at least
kiss them goodbye. They know Ive been there, and they feel a little bit
better about the day.



Appellant testified that his only intention was
to share some time with his daughters and "intensify that father-child
bond." He denied lying on top of CA and rubbing his groin area on hers.
He denied placing his penis in CAs hand. He denied rubbing her chest.
He denied doing anything for the purpose of arousing, appealing to, or
gratifying his lust or sexual desires.
Appellant testified that he was in a state
of shock during his interview with Lt Goss. He was surprised at CAs accusation
and surprised to find out about her sexual activity with her boyfriend.
He tried to figure our how his morning routine could have been misinterpreted.
He could not remember any specific contact that might have been inappropriate,
and he tried to explain that any touching of her breast area or any brushing
of his groin against her would have been accidental.
On cross-examination, appellant admitted that
"on occasion," he gave CA massages and lay in bed with her while in his
underwear. He acknowledged that in his statement to Lt Goss he admitted
using poor judgment.
On redirect, appellant explained his admission
of poor judgment as follows:



I think that what I meant by poor judgment
was -- it -- it sort of involves the way that I think about myself, the
way I -- I care about my family, about the beliefs that I hold, and about
the way that the -- your traditional Christian community views people who,
a traditional Christian would say, "is outside of that community." You
have the -- the Christian community and you have the world, if you will.
And, thinking at that time, yes, someone looking from the outside; not
knowing us, not knowing me, not knowing whats in my heart which I do,
would say that that was something that would -- that ought not be done.
And from that -- from that aspect, I -- I would say that that would --
that could qualify as poor judgment. On the other hand, to myself, my girls
have always been my little girls. Theyll -- no matter how big they get,
no matter how this turns out, they will still be my girls. And, the best
picture Ive got of them is as young children. I see them that way. You
know, actually, I can see them that theyre -- theyve grown up. Theyre
in high school -- two of them are. But, that -- theyre still small to
me. Their -- their physical attributes, if you will, they dont -- they
dont bother me. They dont cause me any concern. When I hug them, I hug
them because I hug them. It -- its not a factor in how I treat them. Theyre
just my girls. Ive always felt that way. I still feel that way.



In rebuttal, the prosecution presented the expert
testimony of Dr. Lynn Geiger, a psychologist. Her testimony is the basis
for the granted issue. Dr. Geiger works as a "validator" for the Jefferson
County Department of Social Services. She is employed to evaluate children
to determine if they display symptoms of having been sexually abused. The
defense made a motion in limine, objecting to Dr. Geigers testimony
on multiple grounds, including an objection to "human lie detector" testimony.
The prosecution made an offer of proof that Dr. Geiger would testify that
CA shows symptoms consistent with sexual abuse, and that sexual abuse is
the most likely cause of her symptoms, including her tendency to fantasize.
The prosecution agreed that it would not use the term "validator." The
military judge overruled the defense objection and permitted Dr. Geiger
to testify "in the limited area" described in the prosecution offer of
proof.
Before the members, Dr. Geiger described her
extensive training, clinical experience, awards, and extensive experience
as an expert witness -- having testified "about 200 times." She was accepted
as an expert on the subject of child sexual abuse, with no defense objection.
She testified that she conducted 1 interview of CA that lasted about 1
hour. She did not interview CAs parents. When Dr. Geiger was asked if
she was able to form an opinion "as to whether [CA] exhibited characteristics
and responses consistent with those exhibited by victims of sexual abuse,"
defense counsel objected on the ground that there was no foundation for
such an opinion because it was based only on a 1-hour interview. The military
judge overruled the objection. Dr. Geiger then testified, "My opinion is
that the information that I obtained during the course of the evaluation
with [CA] is highly indicative of her being sexually abused by her father."
Defense counsel did not restate his earlier objection, but proceeded to
cross-examine Dr. Geiger regarding the basis for her opinion. Defense counsel
also asked Dr. Geiger if there could be explanations for CAs behavior
other than sexual abuse. She responded, "Absolutely."
Immediately after Dr. Geiger testified, the
military judge instructed the members as follows:



You are advised that only you, the members
of the court, determine the credibility of the witnesses and what the facts
of this case are. No expert witness can testify that the alleged victims
account of what occurred is true or credible, or that a sexual encounter
occurred. To the extent that you believe that Dr. Geiger testified or implied
that she believes the alleged victim or that a crime occurred, you may
not consider this as evidence that a crime occurred.



He gave substantially the same instruction before
the members closed to deliberate on findings.

Discussion
The granted issue challenges only the harmless-error
analysis by the court below. The court below held that Dr. Geigers testimony
was improper, and the Government does not challenge that holding.
Although the court below appears to have treated
the error as constitutional error, we agree with the Government that the
error in this case is a nonconstitutional evidentiary error. See
United States v. Charley, 189 F.3d 1251, 1270 (10th Cir.
1999) (counselors testimony of counselors impermissibly vouching for credibility
of victims treated as non-constitutional error).
The test for harmless error is "whether the
error itself had substantial influence" on the findings. United States
v. Pollard, 38 MJ 41, 52 (CMA 1993), quoting Kotteakos v. United
States, 328 U.S. 750, 765 (1946). "If so, or if one is left in grave
doubt, the conviction cannot stand." Id.; see also United
States v. Adams, 44 MJ 251, 252 (1996).
We are not persuaded that the error was harmless.
This case pitted the credibility of a senior noncomissioned officer with
23 years of honorable service against the ambiguous, uncertain testimony
of a 17-year-old girl who appeared to live in a fantasy world and "may
be prone to perceptual inaccuracies." Appellants wife and 15-year-old
daughter supported him in his defense. Appellants written statement to
the police admitted only accidental contact and poor judgment. There was
no physical or testimonial evidence to corroborate CAs testimony. CA was
not a strong witness, but Dr. Geiger was powerful. Dr. Geiger threw the
full weight of her impressive curriculum vitae behind her unequivocal and
highly prejudicial conclusion that CA was sexually abused by her father.
We have often held that a curative instruction
can render an error harmless. See, e.g., United States
v. Harris, 51 MJ 191, 196 (1999); United States v. Anderson,
51 MJ 145, 151 (1999); United State v. Skerrett, 40 MJ 331, 333-34
(CMA 1994). In this case, however, we have "grave doubts" about the military
judges ability to "unring the bell." Kotteakos v. United States,
supra. Accordingly, we must reverse.

Decision
The decision of the United States Army Court
of Criminal Appeals is reversed. The findings of guilty and the sentence
are set aside. The record of trial is returned to the Judge Advocate General
of the Army. A rehearing is authorized.


CRAWFORD, Chief Judge (dissenting):
I disagree with the majoritys conclusion that
the error substantially influenced the findings. I also disagree that the
victims (CAs) testimony was ambiguous and uncertain, and that she "may
be prone to perceptual inaccuracies."
Dr. Scarano-Osika, the defense expert, conducted
a variety of psychological tests on CA. She testified that based upon the
Rorschach Test, CAs perceptual capacity was unflawed at the time of the
testing. She also testified that it is possible CA could be prone to perceptual
inaccuracies in the future, but that "[t]here are many factors
that could prevent that from happening." This was confirmed on cross-examination.
There is simply no indication in the record that CA was prone to perceptual
inaccuracies at the time of the testing. Also, I find compelling CAs repeated
testimony that she did not tell appellant to stop or warn her sisters of
appellants behavior because she "didnt know" her father when he was sexually
abusing her, and that he was a "different person" then.
In my view, CA was a strong witness, and Dr.
Geigers testimony was harmless. Her opinion was based on a 1-hour interview,
and Dr. Geiger admitted that there could be other traumatic events which
might explain CAs behavior.


SULLIVAN, Judge (dissenting):
The members found appellant guilty of 3 specifications
of committing indecent acts with his 15-year-old daughter. The appellate
court below stated:



The victim of MSG Armstrongs misconduct
was his eldest daughter, CA. CA was born on 15 December 1978. The first
three specifications alleged that three distinct, indecent acts (rubbing
CAs chest and neck area, placing his penis in CAs hand, and rubbing his
groin area against his daughters groin area) occurred "on diverse occasions"
between 1 November and 14 December 1994.



Unpub. op. at 2.
The majority sets aside these convictions because
opinion testimony from a government witness, Doctor Geiger, was improperly
admitted at appellants court-martial over defense objection. The majority
also specifically holds that it is not persuaded that such error was harmless.
I conclude, based on the entire record in this case, that this objected-to
evidentiary error was harmless because it did not "materially prejudice[]
the substantial rights of [appellant]." Article 59(a), UCMJ, 10 USC §
859(a); see United States v. Charley, 189 F.3d 1251, 1272
(10th Cir. 1999); cf. United States v. Dollente,
45 MJ 234 (1996).
Turning first to the evidentiary error, I agree
with the appellate court below that it occurred. See United States
v. Suarez, 35 MJ 374, 376 (CMA 1992) (Expert testimony admissible to
"help[] explain why many sexually abused children delay reporting their
abuse, and why many children recant allegations of abuse and deny that
anything occurred."). At the very least, expert testimony concerning the
typical responses of child sex abuse victims is admissible at court-martial
if a proper foundation is laid. Id. Here, the alleged victims failure
to object to her fathers conduct or to call it to the attention of some
other adult was a focal point of the defenses attack on her credibility.
Moreover, the defense attacked the victims credibility on the basis of
a defense experts view that she "may be prone to perceptual inaccuracies."
Thus, the prosecution properly asked Dr. Geiger: "Based upon your interview
with [CA], were you able to form an opinion as to whether she exhibited
the characteristics and responses consistent with those exhibited by victims
of sexual abuse?" Id.; see United States v. Charley,
supra at 1264-65.
However, Dr. Geigers testimony in response
to this proper and reasonable question was inadmissible. She replied: "My
opinion is that the information that I obtained during the course of the
evaluation with [CA] is highly indicative of her being sexually abused
by her father." This response goes far beyond the question asked and that
permitted by military law. See United States v. Birdsall,
47 MJ 404, 410 (1998); see also United States v. Charley,
supra at 1266-68. The core question then becomes one of harmless
error under Article 59(a). The majority has "grave doubts" concerning the
harmlessness of such error. As I explain later, I do not. First, I wish
to focus on the majoritys reasoning.
In reversing this case, the majority engages
in an unwarranted attack on the alleged victims testimony. It describes
her testimony as "the ambiguous, uncertain testimony of a 17-year-old girl
who appeared to live in a fantasy world and may be prone to perceptual
inaccuracies." ___ MJ (14). However, when a reasonable person reads
the record in this case, it appears that facts, not fantasies, were presented
to the jury. In fact, appellant clearly corroborated key portions of the
victims testimony in his own pretrial statement admitted at this trial.
(Prosecution Exhibit 6). There, appellant stated:



CONCERNING THE REASON THAT I AM AT THE POLICE
STATION: SINCE I HAVE THOUGHT ABOUT WHAT HAS BEEN SAID I WOULD LIKE TO
STATE THAT I HAVE USED POOR JUDGEMENT. MY ACTIONS WHICH ARE THE BASIS OF
THIS COMPLAINT WERE NEVER MEANT TO GIVE ME SEXUAL GRATIFICATION OR INJURE
MY DAUGHTERS. AS FOR THE STATEMENT ABOUT ME TOUCHING [CAS] CHEST/BREASTS
I HAVE POSSIBLY TOUCHED THEM BY ACCIDENT WHILE GIVING HER A MASSAGE.
IN THE MORNING BEFORE GOING TO WORK I WOULD
OCCASIONALLY ENTER [CAS] BEDROOM AND GIVE HER A KISS GOOD-BYE. SOMETIMES
I WOULD ALSO MASSAGE HER SHOULDERS, NECK AND I ACCIDENTLY TOUCHED HER
WHERE SHE DID NOT FEEL COMFORTABLE. AT NO TIME DID [CA] INDICATE THAT
SHE DID NOT LIKE THIS OR ASK ME TO STOP UNTIL LAST THURSDAY MAY 23RD.
SOME TIME AGO THERE WAS ALSO AN INDICENT WHERE MY PENIS TOUCHED [CAS]
HAND. THIS WAS NOT INTENTIONAL, BUT I WAS IN MY UNDERWEAR AND I WAS
MASSAGING HER. ONE OF US MOVED AND MY PENIS WENT ACROSS HER HAND. AGAIN
THIS WAS AN ACCIDENT.



(P.E. 6). Obviously, the alleged victim did not
fantasize about all of the inappropriate touchings in this case.
The majority also errs in evaluating appellants
testimony solely in terms of his credibility as a senior noncommissioned
officer with 23 years of honorable service. Appellants actual testimony
in this case must also be considered. He explained his practice of entering
his daughters bed early in the morning before she awoke as follows:



So in the morning, Id try and spend a little
bit of time with them to make me--me feel better about the time I cant
spend with them, and to--just kind of start their day off with--with a
warm feeling that they know that--even if they cant remember that their
dads been there, they know that--that I come in and I at least kiss them
goodbye. They know Ive been there, and they feel a little bit better about
the day.



(R. 333). He further explained why he did not
wake his children at this time:



Q. Did you think that they would be able
to remember that you had done this?
A. Its--its possible. Ive heard stories
of where personnel--people who are in comas, if you read to them, sing
to them and so on, that some doctors will claim that that helps them.
It helps maintain a hold on reality and such, and so I had sort of the
same idea in mind. Even if they cant remember for sure I was there, you
know, they--maybe it would transfer a little bit like that. And again,
at least I felt better if I had spent some time with them during the day.



(R. 333) (Emphasis added.) Finally, he
admitted that he occasionally did this while in his underwear.
In my view, appellants testimony is damning
material for the jury, and his "innocent explanations" could reasonably
be discounted by the jury. Moreover, appellants testimony is substantially
different from that presented in United States v. Dollente, 45 MJ
at 234. In that case, the accused basically asserted that he had a regular
practice of crawling into his teenage daughters bed in the morning to
wake her, and he may have accidentally touched her in inappropriate places
during this process. Moreover, in Dollente, supra, the alleged
victim recanted her accusations of sexual abuse prior to trial. Here, the
alleged victim did not recant her testimony, and appellants explanation
of his own conduct was considerably more bizarre than that presented by
the accused in Dollente.*
In these circumstances, I am convinced that this case was not as close
as the majority indicates. Id. at 238.
The majority opinions legal standard for determining
harmless error is correct. Consistent with my separate opinion in United
States v. Powell, 49 MJ 460, 466 (1998) (Sullivan, J., concurring in
the result), on plain error, the majority follows Supreme Court cases on
the subject of harmless error when we are interpreting and applying Article
59(a). See United States v. Berry, 1 USCMA 235, 239, 2 CMR
141, 145 (1952); United States v. Lee, 1 USCMA 212, 216, 2 CMR 118,
122 (1952); United States v. Lucas, 1 USCMA 19, 23, 1 CMR 19, 23
(1951). More particularly, it follows the harmless error standard enunciated
in Kotteakos v. United States, 328 U.S. 750 (1946), and recently
discussed in ONeal v. McAninch, 513 U.S. 432 (1995). The Supreme
Court indicates that it is somewhat misleading to focus on which party
has the burden and whether that burden has been met when an appellate court
reviews for harmless error. The real question the Court is asking itself
when applying the legal standard of harmless error is, "Do I, the judge,
think that the error substantially influenced the jurys decision?" ONeal,
513 U.S. at 436; see also Brecht v. Abrahamson, 507
U.S. 619, 637 (1993) (did error have substantial and injurious effect on
or influence in determining the jurys verdict). If the appellate court
concludes that the error did not have a substantial influence on the outcome
or has no grave doubt that it had such effect, the error is harmless. See
United States v. Charley, 189 F.3d at 1270, 1272.
As to my view on harmless error in this case,
my independent review of the record shows that no actual prejudice inured
to appellant as a result of the evidentiary error noted above. Strong curative
instructions were given by the military judge prohibiting the improper
use of Dr. Geigers testimony, once after she testified and once again
during the instructions before deliberation. See United States
v. Harris, 51 MJ 191, 196 (1999)(instructions to the members absolved
any resultant harm from admitting numerous instances of improper testimony).
Moreover, Dr. Geigers unsolicited answer was not exploited by the Government,
and it was not referred to by either party in their closing arguments.
Also, appellants story of his regular practice of massaging his 15-year-old
daughter in her bed each morning, sometimes in his underwear, in order
to personally bond with her while she was asleep, did not have great exculpatory
value. See United States v. Weeks, 20 MJ 22, 25 (CMA 1985).
On the other hand, the Government presented
a strong witness in CA, whose story was corroborated to a large degree
by appellants damaging admissions to civilian police. Finally, in view
of the "relatively modest amount of erroneously admitted testimony" from
Doctor Geiger, I am convinced that this error did not materially prejudice
appellant. See United States v. Charley, supra
at 1270 n.29, 1272 (affirming conviction based on Court of Appeals
own evaluation for absence of prejudice). In the case before us, the record
shows appellant received a fair trial before a jury that properly convicted
him. The jury fairly heard both sides in this case and decided against
the appellant. Accordingly, I see no legal reason to disturb this
jurys verdict. I would affirm this case.
FOOTNOTE:
* Unlike in this case,
Judge Gierke, in Dollente, supra, took a less sympathetic
view of the accused child abusers explanations and characterized
Staff Sergeant Dollentes statement to the Office of Special Investigations
that he "sometimes awakens his 13-year-old step-daughter by lying on the
bed with her, and hugs and kisses her, and sometimes goes on top of her
to wake her up," as being "bizarre" and an "implausible excuse." United
States v. Dollente, 45 MJ 234, 244 (1996) (Gierke, J., with whom Crawford,
J., joins, dissenting). One might find more incredible, however, the instant
appellants explanation of his regular practice of bonding with his teenage
daughters by massaging them every morning before they awake (R. 333, 336),
sometimes in his underwear, in hopes of starting their day off with a warm
feeling (like helping "people who are in comas").

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