UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                    MULLIGAN, ALDYKIEWICZ, and SCHASBERGER
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Specialist MARCO A. REYES
                          United States Army, Appellant

                                   ARMY 20160704

                       Headquarters, 82d Airborne Division
                         Deidra J. Fleming, Military Judge
                  Colonel Dean L. Whitford, Staff Judge Advocate


For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Jack D. Einhorn, JA;
Captain Patrick G. Hoffman, JA (on brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Captain Jeremy S. Watford, JA; Captain Natanyah Ganz, JA (on brief).


                                      2 May 2019

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                               OPINION OF THE COURT
                               --------------------------------

MULLIGAN, Senior Judge:

      Appellant argues the military judge abused her discretion when she denied
appellant’s motion to admit out-of-court statements by one of appellant’s victims
substantively, and instead admitted the statements only for impeachment purposes.
We disagree.

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of rape, four specifications of sexual
assault, two specifications of conspiracy to obstruct justice, one specification of
willfully disobeying a lawful order, one specification of larceny, one specification of
wrongful appropriation, two specifications of assault consummated by a battery,
three specifications of adultery, and three specifications of obstructing justice in
violation of Articles 81, 90, 120, 121, 128, and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 881, 890, 920, 921, 928, and 934 [UCMJ]. The military judge
acquitted appellant of multiple specifications of rape, conspiracy, assault,
REYES—ARMY 20160704

obstructing justice, and a general disorder. The military judge sentenced appellant
to a dishonorable discharge, thirteen years of confinement, and reduction to the
grade of E-1. The military judge credited appellant with 547 days against his
sentence to confinement. The convening authority approved appellant’s sentence as
adjudged. Appellant’s case is before us under Article 66, UCMJ. 1

                                  BACKGROUND

       In less than four years between appellant’s enlistment in the Army and his
pretrial confinement for the charges in this case, appellant committed a multitude of
crimes ranging from military-specific misconduct to rape by force. Among his
misdeeds, appellant: sexually assaulted his wife, DR; raped his first mistress, DM;
committed adultery with his second mistress, JA; and conspired to obstruct justice
with his third mistress, NM.

      This opinion focuses on electronic messages DR allegedly sent to NM
regarding DR’s report of appellant’s sexual violence. The messages included:

             I let [appellant] sweet talk me into dropping the charges
             the first time. I told him that I could say anything and the
             court would believe ME. True or not. He raped me as far
             as the police is [sic] aware. I did go get a rape kit. All he
             had to do was be a good husband and he couldn’t so I had
             to do what I had to do . . . . You don’t know him like I do.

      The electronic messages at issue were sent in response to statements by NM,
with whom appellant had an adulterous affair, and also with whom appellant
conspired to obstruct justice by threatening and attempting to bribe JA.


1
  We have considered appellant’s other assignment of error, alleging he was denied
his right to a speedy trial under Article 10, UCMJ. We find it merits no relief. The
delay of which appellant complains was not unreasonably long under the
circumstances; the government acted with reasonable diligence to bring appellant to
trial; and there were reasonable reasons for the delay. Such reasons include, but are
not limited to: the Rule for Courts-Martial 706 evaluation appellant requested; the
initial delay of the trial date appellant requested; and the delay necessary to secure
expert assistance for appellant at his request. See generally United States v. Cossio,
64 M.J. 254, 256 (C.A.A.F. 2007) (citing Barker v. Wingo, 407 U.S. 514 (1972)).

Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant
personally asserted three additional claims of error. We find they also merit no
relief.




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REYES—ARMY 20160704

       At trial, DR denied having made the statements at issue. Appellant moved to
admit the statements substantively, and the government objected on multiple
grounds, including hearsay. Appellant responded that the statements fell under the
Military Rule of Evidence (Mil. R. Evid.) 803(3) exception to the rule against
hearsay. The exception relates to statements of a “then-existing mental, emotional,
or physical condition.” Appellant’s theory was that the statements showed that DR
intended to give false testimony. The military judge ultimately admitted the
statements for impeachment purposes, but did not admit the statements substantively
under the Mil. R. Evid. 803(3) exception. On appeal, appellant challenges this
limitation.

                              LAW AND DISCUSSION

      “A military judge’s decision to admit or exclude evidence is reviewed for an
abuse of discretion. An abuse of discretion occurs when a military judge either
erroneously applies the law or clearly errs in making his or her findings of fact.”
United States v. Bowen, 76 M.J. 83, 87 (C.A.A.F. 2017) (internal citations and
quotation marks omitted).

       We conclude the military judge did not abuse her discretion by admitting
DR’s alleged statements for impeachment purposes but not for their substance. We
will first address appellant’s proposed improper use of DR’s statements for a
hearsay purpose, then we will address the military judge’s proper use of DR’s
statements for a non-hearsay purpose.

                        A. Offering DR’s Statements as Hearsay

       Hearsay is commonly defined as an out-of-court statement offered for its
truth. More precisely, at courts-martial,

             “Hearsay” means a statement that:
             (1) the declarant does not make while testifying at the
             current trial or hearing; and
             (2) a party offers in evidence to prove the truth of the
             matter asserted in the statement.

Mil. R. Evid. 801(c).

       Hearsay is generally inadmissible as evidence in the Anglo-American legal
tradition, see McCormick on Evidence § 244 (7th ed. 2013), and is explicitly
prohibited at courts-martial. Mil. R. Evid. 802. A statement that is not offered to
prove the truth of the statement’s content is not hearsay and is not prohibited by the
rule against hearsay. The prohibition on hearsay as evidence is also subject to many
exceptions. See Mil. R. Evid. 801(d), 802, 803, 804, 807.



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REYES—ARMY 20160704

       It is without question that the messages allegedly sent by DR to NM were
statements not made at appellant’s trial. Whether the messages constitute hearsay
therefore depends on the purpose for which the messages were offered.

       Appellant sought to admit the relevant messages substantively—i.e., for the
truth of the assertions contained in the messages. While this would be a hearsay use
of the messages, appellant asserts the hearsay exception found in Mil. R. Evid.
803(3) for a “then-existing mental, emotional, or physical condition” applies.

      In relevant part, Mil. R. Evid. 803(3) makes an exception to the rule against
hearsay for the following:

             A statement of the declarant’s then-existing state of mind
             (such as motive, intent, or plan) or emotional, sensory, or
             physical condition (such as mental feeling, pain, or bodily
             health), but not including a statement of memory or belief
             to prove the fact remembered or believed unless it relates
             to the validity or terms of the declarant’s will.

Mil. R. Evid. 803(3) (parentheticals in original).

       The bulk of the statements at issue are about past events, such as what DR
allegedly said to appellant in the past. Thus, most of the statements at issue are
worse than hearsay, they are hearsay within hearsay. None of the statements at issue
are statements of a mental state or physical condition that existed when DR made
them.

       The substantive assertions in the relevant statements are not only compound
hearsay, they are also not particularly beneficial to appellant. The statements
include assertions that appellant was a bad husband; appellant raped DR; DR had a
rape kit administered to her; appellant sweet-talked DR into dropping a prior
complaint; and NM does not know appellant like DR does.

       The importance of DR’s statements is not the truth of their underlying
substance—such as that appellant was a bad husband—but as circumstantial
evidence that DR was biased against appellant and might have a motive to fabricate
her allegations against him. The statements also could be read to circumstantially
suggest that DR may have had a plan to falsely testify against appellant. DR never
explicitly said she was biased, had a motive to fabricate, or intended to testify
falsely, but a reasonable factfinder could have drawn such conclusions from the




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REYES—ARMY 20160704

totality of DR’s statements. 2 In other words, DR’s statements to NM are relevant
not for their substance, but as evidence to undermine the trustworthiness of DR’s in-
court testimony against appellant—i.e., as impeachment.

    B. Admitting DR’s Statements for the Non-Hearsay Purpose of Impeachment

      The military judge did not entirely exclude DR’s alleged statements from
evidence. She admitted the relevant statements for the purpose of impeachment,
which is a non-hearsay use of the statements.

        The “then-existing state of mind” exception under Mil. R. Evid. 803(3)
should not be confused with the non-hearsay use of statements offered as
circumstantial evidence of a declarant’s state of mind. Impeachment through
circumstantial evidence of a declarant’s state of mind and the Mil. R. Evid. 803(3)
exception represent “two separate purposes for which [evidence] may be admitted:
(1) showing bias—an impeachment method which is not hearsay, and (2) showing
state of mind—a hearsay exception under Rule 803(3).” United States v. Gentle, 361
Fed. Appx. 575, 580 (5th Cir. 2010) (emphasis in original). See also id. at n.5
(citing McCormick on Evidence § 274 (6th ed. 2009)).

       Statements offered as circumstantial evidence of a declarant’s state of mind
are not hearsay because such statements are not offered for the truth of the matter
asserted therein. Instead, such statements are offered as circumstantial evidence of
the speaker’s bias, motive, intent, or similar mental processes. 3

       We conclude the military judge did not abuse her discretion by denying
appellant’s motion to substantively admit DR’s alleged out-of-court statements. The
military judge admitted DR’s statements as impeachment evidence, and therefore
considered them for precisely the purpose for which they should be considered—as
potentially impeaching DR’s in-court testimony. See Mil. R. Evid. 608(c). We
therefore conclude the military judge did not err.




2
 A reasonable fact finder could have also drawn different conclusions based on the
circumstances, which would not so significantly undermine DR’s credibility.
3
 For example, suppose Sergeant (SGT) Smith testifies that Specialist (SPC) Jones
said to him, “SGT Smith, you are the worst sergeant in the Army!” The statement
might be admissible as circumstantial evidence that SPC Jones does not like SGT
Smith, but it would not be admissible as evidence that SGT Smith is, in fact, the
worst sergeant in the Army.




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REYES—ARMY 20160704

       Further, even if DR’s statements had been substantively admissible, the
failure to admit them substantively would be harmless to appellant because the
military judge considered the statements for the purpose that would most benefit
appellant—to undermine DR’s credibility. That the military judge nevertheless
convicted appellant of offenses against DR speaks to NM’s lack of credibility and
the strength of the balance of evidence against appellant.

       We are mindful that the military judge was able to see and hear the witnesses,
including DR and NM, and was in a “superior position” than we are to judge the
witnesses’ credibility. United States v. Latimer, 30 M.J. 554, 557 (A.C.M.R. 1990).
DR denied having made the statements, and NM was a witness of dubious credibility
considering her relationship with appellant and criminal conspiracy with him to
obstruct justice through witness-tampering. We find no fault with the military
judge’s admission of the relevant statements as impeachment evidence, her weighing
of witnesses’ credibility, and her verdict of appellant’s guilt.

      Judge SCHASBERGER and Judge ALDYKIEWICZ concur.

                                  CONCLUSION

      The findings of guilty and sentence are AFFIRMED.

                                       FOR THE COURT:




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




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