               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.

                                 Before
             R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                        Appellate Military Judges

                       UNITED STATES OF AMERICA

                                       v.

                       NATHAN A. BUTTERS
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                            NMCCA 201300291
                        GENERAL COURT-MARTIAL


Sentence Adjudged: 22 March 2013.
Military Judge: Maj Nicholas Martz, USMC.
Convening Authority: Commanding General, 2d Marine Aircraft
Wing, Cherry Point, NC.
Staff Judge Advocate's Recommendation: LtCol J.J. Murphy,
III, USMC.
For Appellant: William E. Cassara, Esq.; CAPT Tierney
Carlos, JAGC, USN.
For Appellee: LCDR Keith Lofland, JAGC, USN.

                           30 September 2014

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

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE.

MCFARLANE, Senior Judge:

     A general court-martial consisting of officer and enlisted
members convicted the appellant, contrary to his pleas, of two
specifications of making a false official statement and one
specification of aggravated sexual contact, in violation of
Articles 107 and 120, Uniform Code of Military Justice, 10
U.S.C. §§ 907 and 920. The members sentenced the appellant to a
period of confinement for one year and reduction to pay grade E-
1. The convening authority (CA) approved the sentence as
adjudged.

     On appeal, the appellant raises twelve assignments of error
(AOE).1 We address six (AOEs II, III, IV, V, VI and IX), and
summarily find the remaining assignments of error to be without
merit.

     After carefully considering the record of trial, the
submissions of the parties, and oral argument, we are convinced
that the findings and the sentence are correct in law and fact,

1
   I. That the guilty finding for aggravated sexual contact is not factually
sufficient;

II. That the military judge improperly denied compulsory production of a
defense witness;

III. That the military judge erred by denying the defense challenge for cause
against Master Sergeant H;

IV. That the military judge erred in denying the defense request to dismiss
the panel;

V. That the military judge improperly admitted hearsay evidence over the
defense objection as excited utterances;

VI. That the military judge improperly allowed trial counsel to test the
basis of Staff Sergeant B’s opinion of the appellant’s character for
truthfulness;

VII. That the appellant’s trial was tainted by apparent unlawful command
influence when the military judge improperly admitted irrelevant evidence
that “something is going to happen” because the two commanding officers at
Cherry Point do not take these sorts of allegations “lightly”;

VIII. That the military judge improperly admitted a conversation between the
victim, Cpl MP and the victim advocate;

IX. That the military judge improperly excluded the videotape interview of
Cpl MP, which included a prior inconsistent statement;

X. That the military judge improperly admitted hearsay statements made by Cpl
MP to Special Agent T;

XI. That the CA’s post-trial actions established that he could not be fair
and impartial during his clemency review; and

XII. That the guilty finding for false official statement under the
additional charge is not factually sufficient.
                                      2
and that no error materially prejudicial to the substantial
rights of the appellant was committed. Arts. 59(a) and 66(c),
UCMJ.

                       Factual Background

     On the evening of 8 September 2012, the appellant and
Corporal (Cpl) MP separately attended the same party at a
barracks onboard Marine Corps Air Station, Cherry Point, North
Carolina. Cpl MP had not met the appellant prior to that
evening, but she jokingly took his hat off at the party when she
told him to change the music that was playing. Cpl MP left the
party with her friend around 0500 on 9 September 2012. She
separated from her friend outside of his barracks.

     As Cpl MP got to the midsection of her barracks building,
the appellant grabbed Cpl MP’s left hip, pulled her away from
the door, and told her that he wanted to get to know her better.
Cpl MP told the appellant that she was tired and that she just
wanted to go to bed. The appellant and Cpl MP walked together
for a short period, after which the appellant forced Cpl MP
against a wall and touched and kissed her without her consent.
The appellant sucked on Cpl MP’s neck with enough force to leave
a hickey, pushed his hand underneath her shirt and bra, and felt
her breast. Cpl MP struggled against the appellant’s advances,
managed to push him off, and walked away. The appellant chased
after Cpl MP, grabbed her wrist, and tried to pin her against
the door to a maintenance room on the lower level of the
barracks. Cpl MP escaped the appellant a second time and made
her way to her room. A short time later, she ran to the duty
hut to report the incident.

     During her initial Naval Criminal Investigative Service
(NCIS) interview, which occurred later that same morning, Cpl MP
described her assailant as a black male, about five feet, ten
inches in height, about 160 pounds with a prominent jaw, thin
eyebrows, and a mustache, and indicated that he was wearing a
purple hat. She did not however, tell NCIS that her assailant
had been at the party she was attending immediately before the
attack. Rather, she said that she had not seen him before, that
she could not assist them with the creation of a sketch, and
that she did not think she could identify the assailant’s hat.

                                3
     The next day, after getting some sleep, Cpl MP recalled
that the appellant had been wearing a hat similar to her
assailant’s. She then called a friend to learn the appellant’s
name, which she in turn provided to NCIS. Based on this report,
NCIS collected a DNA sample from the appellant and conducted
forensic testing of Cpl MP’s clothing. Those tests found the
appellant’s DNA inside the cup of the Cpl MP’s bra, at roughly
five times the rate her DNA was found.

     Further facts relevant to the assignments of error are
developed below.

           Denial of Production of a Defense Witness

     The appellant argues that the military judge erred in
denying production of a defense witness. We disagree.

     Trial defense counsel made a pretrial motion to compel
production of witnesses, including Sergeant (Sgt) DF. Defense
counsel proffered that Sgt DF would testify that, contrary to
Cpl MP’s claim that she had never seen the appellant before, she
and the appellant had been “in close proximity two times before
the day of the attack[,]” once at a prior barbeque, and once
when he and several other Marines rode back to the base in the
bed of her pickup truck. Record at 13-14. Trial counsel argued
that Sgt DF’s testimony would not be material or relevant,
because in his sworn statement to NCIS, he stated that he could
not testify that the appellant and Cpl MP ever interacted.
Defense counsel then admitted that Sgt DF “has no remembrance of
them interacting.” Id. at 19. The military judge subsequently
denied the production of Sgt DF, finding that the defense did
not prove by a preponderance of the evidence that the witness
was relevant or necessary.

     We review a military judge’s ruling on a request for a
witness for an abuse of discretion. United States v. McElhaney,
54 M.J. 120, 126 (C.A.A.F. 2000). An appellate court will not
set aside a military judge's denial of a witness unless it has a
“definite and firm conviction” that the military judge committed
“a clear error of judgment[.]” Id. at 126 (citation and
internal quotation marks omitted).



                                4
      Article 46 of the UCMJ states, “[t]he trial counsel, the
defense counsel, and the court-martial shall have equal
opportunity to obtain witnesses and other evidence in accordance
with such regulations as the President may prescribe.” The
President has set forth the prescribed regulations for the
production of witnesses and evidence in RULE FOR COURTS-MARTIAL 703,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). Pursuant to
R.C.M. 703(b)(1), “[e]ach party is entitled to the production of
any witness whose testimony on a matter in issue on the merits
or on an interlocutory question would be relevant and
necessary.” A witness provides relevant testimony when there is
“any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.” MILITARY
RULE OF EVIDENCE 401, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).

     In this case, the defense sought to present Sgt DF’s
testimony in order to argue that in the “normal course of social
interactions the members would be able to infer that there
should have been some interaction between [the appellant and Cpl
MP], and that she had been in his presence before where she
should have recognized him . . . .” Record at 20. We find the
link between what Sgt DF could testify to, and what the defense
wanted to argue therefrom, tenuous at best. Accordingly, we do
not find that the military judge abused his discretion by
denying the witness.

      Challenge for Cause Against Master Sergeant (MSgt) AH

     The appellant argues that the military judge erred by
denying the defense’s challenge for cause against MSgt AH.           We
disagree.

     During the voir dire process, the military judge employed a
liberal grant mandate for ruling on defense challenges for
cause. As a result, the military judge granted all but two of
the appellant’s eight challenges for cause. The appellant
exercised his peremptory challenge against one of the two
members, and the other one sat on the panel – MSgt AH. Defense
counsel had challenged MSgt AH for having actual bias due to his
having been the victim in a previous shooting, and because his
older brother was previously hospitalized due to an assault.
Trial counsel noted a lack of similarity between the MSgt’s
                                    5
experience and the charges pending trial. The military judge
denied the defense’s challenge, finding that MSgt’s experiences
“would not influence his role here as an impartial fact finder.”
Record at 250.

     We review a military judge’s ruling on a challenge for
cause based on actual bias for an abuse of discretion. United
States v. Leonard, 63 M.J. 398, 402 (C.A.A.F. 2006) (citing
United States v. James, 61 M.J. 132, 183 (C.A.A.F. 2005)). The
Court of Appeals for the Armed Forces “has repeatedly emphasized
the need for a military judge to follow a ‘liberal grant’
mandate in ruling on challenge for cause.” Leonard, 63 M.J. at
402 (footnote omitted). A military judge’s rulings based on
actual bias “are afforded a high degree of deference . . . By
contrast, issues of implied bias are reviewed under a standard
less deferential than abuse of discretion but more deferential
than de novo.” United States v. Downing, 56 M.J. 419, 422
(C.A.A.F. 2002) (citations omitted). “Implied bias is reviewed
under an objective standard, through the ‘eyes of the public’
and ‘focusing on the appearance of fairness.’” Leonard, 63 M.J.
at 403 (citing United States v. Daulton, 45 M.J. 212, 217
(C.A.A.F. 1996) and United States v. Rome, 47 M.J. 467, 469
(C.A.A.F. 1998)).

     Applying these principles to the challenge of MSgt AH, we
find that the military judge did not abuse his discretion by
denying the challenge. We note that the military judge applied
the liberal grant mandate when evaluating the challenges for
cause. When MSgt AH was challenged, the military judge made
findings of fact after hearing both trial counsel and defense
counsel’s arguments, and found that while MSgt AH was a prior
victim of a random shooting, it would not affect his ability to
act as an impartial fact finder. We agree. The facts of a
random shooting greatly differ from the facts in the appellant’s
case. Further, MSgt AH stated during voir dire that he would be
able to apply the military judge’s instructions fairly and
impartially. The military judge also applied the proper test
for implied bias, and properly found it did not apply. We
therefore hold that the military judge did not abuse his
discretion by denying the challenge for cause.



                                6
                    Member Selection Process

     The appellant argues that the military judge erred by
denying the trial defense counsel’s request to dismiss the panel
because members under the rank of E-6 were systematically
excluded. We disagree.

     The Staff Judge Advocate (SJA), 2d Marine Aircraft Wing (2d
MAW), sent the CA a memorandum regarding the selection of
members for the appellant’s trial. A list of service members
nominated by subordinate commands was attached to the SJA’s
memo, with the potential members’ questionnaires, along with
alpha rosters for both officers and enlisted service members.
The enlisted alpha roster contained only those at the rank of E-
6 and above. The SJA’s memo advised the CA to select members
based on the criteria in Article 25 of the UCMJ. The memo
further provided, “[y]ou are in no way bound by or limited to
the names contained” in the list of nominated members, and that
“an alpha roster of officers and senior enlisted personnel” are
enclosed “to assist in your selection.” Appellate Exhibit XLII
(emphasis added). The CA ultimately chose eight officers and
eight enlisted members from the list of nominated members. He
did not use the alpha rosters provided by the SJA.

     Prior to trial, the appellant challenged the court-martial
member selection process, citing the seniority of the panel. In
response, trial counsel argued that the alpha roster contained
only senior enlisted service members for “administrative ease,”
as there are thousands of Marines at the E-5 and E-4 level.
Record at 166. The military judge denied the defense motion on
the basis that the defense did not submit evidence that the CA
stacked or improperly selected the panel, finding that the
“defense has provided no other evidence other than the
composition of the panel . . . .” Id. at 167 (emphasis added).

     Whether a panel is properly selected is a matter of law
that this court reviews de novo. United States v. Gooch, 69
M.J. 353, 358 (C.A.A.F. 2011) (citing United States v. Dowty, 60
M.J. 163, 171 (C.A.A.F. 2004)). We are bound by the findings of
the military judge unless they are clearly erroneous. United
States v. Benedict, 55 M.J. 451, 454 (C.A.A.F. 2001).



                                7
     A defendant has both a constitutional and regulatory right
to a fair and impartial panel. Gooch, 69 M.J. at 357. “These
rights are upheld through application of selection criteria
contained in Article 25, UCMJ.” Id. Article 25 requires that
the CA must select members who, in the CA’s opinion, are best
qualified for the duty by reason of age, education, training,
experience, length of service, and judicial temperament. Art.
25(d)(2), UCMJ. The CA must personally select the court-martial
members. See United States v. Allen, 18 C.M.R. 250, 263 (C.M.A.
1955). Subordinates do, however, routinely assist the CA by
nominating potential court members. See Benedict, 55 M.J. at
455.

     The burden is on the defense to show a systematic exclusion
of qualified personnel from the selection process. United
States v. Kirkland, 53 M.J. 22, 24 (C.A.A.F. 2000) (citing
United States v. Roland, 50 M.J. 66, 69 (C.A.A.F. 1999)). Once
the defense meets their burden of production, “the Government
must show by competent evidence that no impropriety occurred
when selecting appellant’s court-martial members.” Id.
(citation omitted). Applying these principles, we conclude that
the appellant has not met his burden of production.

     In this case, there has been no showing that subordinate
commands systematically excluded those in ranks under E-6.
Moreover, the SJA’s act of supplying the CA with an alpha roster
composed entirely of senior enlisted personnel, while perhaps
not a best practice, does not systematically exclude certain
ranks, but rather suggests to the CA that he start his
consideration by first looking at the senior grades. This is
further evidenced by the SJA’s instruction to the CA that he can
look beyond the roster if he was so inclined. Given that our
superior court has held that “it is permissible to look first at
the senior grades for qualified court members,” we find that the
appellant has not presented sufficient facts to show systematic
exclusion of qualified personnel. United States v. White, 48
M.J. 251, 254 (C.A.A.F. 1998).

     Lastly, we note that the CA personally selected all of the
members based on the proper statutory criteria, and that the
court was properly convened. Moreover, there is nothing in the
record to suggest that the members who sat on the appellant’s

                                8
court-martial were anything but fair and impartial. To the
contrary, the members were the product of a rigorous voir dire
process wherein the military judge granted six of eight defense
challenges for cause.2 On these facts, “we are confident that
there was no material prejudice to the appellant's substantial
rights” and that the appellant “received the statutorily
qualified, fair, and impartial panel to which he was entitled.”
United States v. Dowty, 57 M.J. 707, 715 (N.M.Ct.Crim.App.
2002), aff’d, 60 M.J. 163 (C.A.A.F. 2004).

       Admission of Hearsay Evidence as an Excited Utterance

     The appellant contends that the military judge erred in
admitting Cpl MP’s statements to Lance Corporal (LCpl) BC as
excited utterances. Appellant’s Brief of 29 Jan 2014 at 56.                We
disagree.

     LCpl BC was on duty in Cpl MP’s barracks on the morning of
9 September 2012 when Cpl MP entered the duty hut. He testified
at trial that Cpl MP “seemed like something had freaked her
out,” and sat down, hugging her knees to her chest. Record at
268-69. Trial counsel asked LCpl BC what Cpl MP told him, and
after a defense objection for hearsay, proffered that the
evidence was being offered for its effect on the listener and as
an excited utterance. Id. at 270. The military judge ruled,
over a defense objection, that the witness could answer.3 LCpl
BC proceeded to testify:

      She just stormed in and just started shaking . . .
      she just came in like she was scared to death, and I
      couldn’t get much out of her at all. She’s really
      talkative, and she wasn’t talking at all.

      . . . .

      It took her about five to ten minutes to actually say
      there’s, like, a guy. I was like, “What are you
      talking about? What kind of guy?” And after
      questioning and questioning her and seeing what

2
   Of the two challenges for cause that were not granted, one member was
struck after a peremptory challenge, and the other was MSgt AH.
3
  The military judge did not, however, specify on which grounds the witness
could answer.
                                      9
      happened, she finally gave me more information as I
      kept asking questions.

      . . . .

      I just asked her where she was, what did she do that
      night. She said there was a guy she met at the party.
      She was hanging out at a barracks party . . .

      After questioning her for maybe 15 to 20 minutes, I,
      like, started to open the door and said I was going to
      go see if there was that guy out there. She was like,
      “No. No. No. Don’t leave me. Don’t leave me.”

Id.

      We review a military judge’s ruling in admitting or
excluding evidence for an abuse of discretion. United States v.
Feltham, 58 M.J. 470, 474 (C.A.A.F. 2003). “‘Hearsay’ is a
statement, other than the one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” MIL. R. EVID. 801(c). MIL. R.
EVID. 802 prohibits hearsay, however, “[a] statement relating to
a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition”
is admissible as an “excited utterance.” MIL. R. EVID. 803(2).

     In order to determine whether a hearsay statement qualifies
as an excited utterance, we apply a three-prong test: “(1) the
statement must be spontaneous, excited, or impulsive rather than
the product of reflection and deliberation; (2) the event
prompting the utterance must be startling, and; (3) the
declarant must be under the stress of excitement caused by the
event.” Feltham, 58 M.J. at 474 (citing United States v.
Arnold, 25 M.J. 129, 132 (C.M.A. 1987)) (additional citation
omitted).

     Given the fact that the military judge did not issue a
limiting instruction precluding the use of Cpl MP’s statements
as extrinsic evidence, we find that the evidence was admitted as
an excited utterance. Additionally, we find that the military
judge did not abuse his discretion by so admitting those
statements. LCpl BC testified that Cpl MP was shaking and
seemed scared to death, the complete opposite of her usual
                                10
demeanor. Cpl MP was so upset that she could not explain what
was bothering her, and LCpl BC had to continually ask her what
was wrong. When Cpl MP finally calmed down enough to speak, it
was a short, incoherent sentence. Further, when LCpl BC went
towards the door in order to check the hallways to see if her
attacker was still around, Cpl MP panicked and told him not to
leave her alone in the room. This shows that she was still
under the stress and excitement of the event, even twenty
minutes later. See id. Accordingly, we find no error in the
admission of the statements.

                Admission of Character Evidence

     The appellant contends that the military judge erred in
allowing trial counsel to test the basis of SSgt KB’s opinion of
the appellant’s character for truthfulness. Appellant’s Brief
at 58. We disagree.

     As the appellant objected to this evidence at trial, we
review for an abuse of discretion. United States v. Staton, 69
M.J. 228, 230 (C.A.A.F. 2010). Character evidence is generally
not admissible in order to prove “action in conformity therewith
on a particular occasion. MIL. R. EVID. 404(a). The accused may
nonetheless present evidence of a pertinent trait of character,
and the prosecution may rebut the same. MIL. R. EVID. 404(a)(1).
In doing so, however, “[i]t is not permissible, in order to test
the basis of a witness’ character opinion, in effect to ask the
witness whether the charge then before the court-martial would
affect the witness’ opinion.” United States v. Brewer, 43 M.J.
43, 47 n.2 (C.A.A.F. 1995) (citations omitted).

     In their case in chief, the defense called Staff Sergeant
(SSgt) KB to testify regarding the appellant’s character for
truthfulness. On cross-examination, trial counsel tested the
foundations of SSgt KB’s opinion. The questioning went as
follows:

    Q: Staff Sergeant, do you agree with me that someone
    who is truthful doesn’t tell lies; correct?
    A: Yes, sir.

    Q. And then someone who has a character for
    truthfulness would then always be telling the truth;

                               11
    correct?
    A: Yes, sir.

    Q: So you would expect a Marine with a character for
    truthfulness to tell the truth to other Marines when
    asked questions?
    A: Yes, sir.

    Q: And to law enforcement?
    A: Yes, sir.

    Q: And to tell the truth to NCIS agents if their asked
    questions?
    A: Yes, sir.

    Q: And, are you aware that Lance Corporal Butters was
    interviewed by –-

    DC: Objection, improper impeachment.

    MJ: Response?

    TC: Sir, I’m questioning the foundation of his
    knowledge of his character truthfulness of the
    accused.

    MJ: What do you believe is improper about it?

    DC: The trial counsel is trying to impeach the witness
    on the charges before us, which there has not been
    findings of whether the accused is guilty of those
    charges.

    MJ: Objection is over ruled at this point.

    Questions by the prosecution:

    Q: You would expect that Marine to tell the truth to
    those NCIS agents, right?
    A: Yes, sir.

    TC: No further questions.

Record at 542-43 (emphasis added).




                                 12
     Although trial defense counsel correctly stated the law on
the impropriety of using allegedly false statements that are the
subject of charges before the court to impeach a witness
regarding truthfulness, at the time of the defense objection the
Government had not yet crossed that line. Thus, given the
premature nature of the defense objection, the military judge
correctly overruled the objection “at this point.” Id. at 543.
Moreover, following the military judge’s ruling, the Government
did not attempt an improper impeachment. Accordingly, we find
no error here.

           Videotape of Prior Inconsistent Statement

     Lastly, the appellant argues that the military judge abused
his discretion by not admitting the videotape of Cpl MP’s
interview with NCIS, because it contained a prior inconsistent
statement. Appellant’s Brief at 66. We disagree.

     We review a military judge’s decision regarding whether to
admit or exclude evidence for an abuse of discretion. United
States v. Harrow, 65 M.J. 190, 199 (C.A.A.F. 2007). “Extrinsic
evidence of a prior inconsistent statement by a witness is not
admissible unless the witness is afforded an opportunity to
explain or deny the same . . . .” MIL. R. EVID. 613(b). Further,
“[i]f the inconsistency is admitted, extrinsic evidence is
generally not admissible.” Harrow, 65 M.J. at 199 (citing
United States v. Gibson, 39 M.J. 319, 324 (C.M.A. 1994)).

     Here, Cpl MP testified on direct examination that she met
with Special Agent (SA) DT on 9 September 2012. On cross-
examination, defense counsel asked her to clarify what she told
SA DT in that initial meeting, specifically asking her whether
she said that she had never seen the appellant before. Cpl MP
acknowledged that was indeed what she initially said to SA DT.
She further explained, “I said I’ve never seen him before; not
before that night. . . . Before the barbeque, I had never seen
him before that night.” Record at 459-60. Defense counsel
asked several follow-up questions that clearly elicited what Cpl
MP initially told SA DT:

    Q: But when Special Agent [DT] asked you that
    question he said, “Had you ever seen this person


                               13
      before?” And you said no, correct?
      A: Correct.
      Q: You didn’t say that you had seen him at the
      barbeque, correct?
      A: I did not.
      Q. You didn’t say that you had seen him over the
      course of a ten-hour period just before the incident,
      right?
      A: Correct.
Id.

     After this exchange, trial defense counsel sought to
introduce the videotape of Cpl MP’s initial meeting with SA DT
as extrinsic evidence of a prior inconsistent statement. After
viewing the videotape during a recess, the military judge ruled
that Cpl MP’s testimony on cross-examination fully admitted that
she had made an inconsistent statement, and that any extrinsic
evidence to prove the inconsistency was inadmissible. We agree.
Trial Defense Counsel completed the impeachment of Cpl MP with
those questions, and the military judge was within his
discretion when he did not permit the extrinsic evidence of the
videotape into evidence.

                  Remaining Assignments of Error

     After reviewing the record of trial and the pleadings of
the parties, we conclude that the remaining assignments of error
raised by the appellant do not merit either relief or further
analysis. United States v. Matias, 25 M.J. 356, 363 (C.M.A.
1987).

                            Conclusion

     The findings and the sentence as approved by the convening
authority are affirmed.

                                 For the Court



                                 R.H. TROIDL
                                 Clerk of Court


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