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

                               No. 201700039
                           _________________________

                    UNITED STATES OF AMERICA
                             Appellee

                                        v.

                        SHERMAN O. ROLLINS
                 Chief Machinist’s Mate (E-7), U.S. Navy
                                Appellant
                         _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

    Military Judge: Commander Heather Partridge, JAGC, USN.
   Convening Authority: Commander, Navy Region Mid -Atlantic,
                            Norfolk, VA.
 Staff Judge Advocate’s Recommendation: Lieutenant Commander
                  Anthony P. Sham, JAGC, USN.
For Appellant: James S. Trieschmann, Jr., Esq.; Commander Donald
                      R. Ostrom, JAGC, USN.
 For Appellee: Major Kelli A. O’Neil, USMC; Lieutenant Megan P.
                       Marinos, JAGC, USN.
                      _________________________

                            Decided 30 July 2018
                           _________________________

  Before W OODARD , M ARKS , 1 and J ONES , 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.
                       _________________________




   1  Senior Judge Marks took final action in this case prior to detaching from the
court.
                        United States v. Rollins, No. 201700039


   WOODARD, Chief Judge:
    Officer and enlisted members sitting as a general court-martial convicted
the appellant, contrary to his pleas, of one specification of sexual assault in
violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 920 (2012).2 The members sentenced the appellant to six years’ confinement
and a dishonorable discharge. The convening authority approved the adjudged
sentence and, except for the dishonorable discharge, ordered it executed.
    The appellant asserts five assignments of error (AOE): (1) the military
judge abused her discretion by refusing to abate the proceedings after the
victim refused to be interviewed pretrial by the defense; (2) the military judge
abused her discretion by admitting hearsay; (3) his conviction is factually
insufficient; (4) the military judge abused her discretion by allowing the victim
to provide unsworn testimony during the sentencing proceeding; and (5) the
non-unanimous members findings violated his Sixth Amendment rights.3 We
conclude the findings and sentence are correct in law and fact and find no error
materially prejudicial to the appellant’s substantial rights. Arts. 59(a) and
66(c), UCMJ.
                                   I. BACKGROUND
    On 22 November 2014, the victim, Private First Class (PFC) KS,4 traveled
to Norfolk, Virginia, to visit her sister-in-law, Personnel Specialist Second
Class (PS2) AS, and attend PS2 AS’s birthday party. PFC KS and PS2AS
arrived at the party between 2230 and 2300. The appellant also attended the
party.
     The appellant and PFC KS had never met. After introducing PFC KS to the
appellant, PS2 AS instructed him to leave PFC KS alone—and that “she was
off limits”—because she was married to PS2 AS’s brother.5
   While at the party, PFC KS and the appellant had limited interaction. The
party ended sometime around midnight, and PFC KS, PS2 AS, DW (PS2 AS’s
boyfriend), the appellant, and several others from the party went to PS2 AS’s
apartment to drop off the gifts, cake, and other party supplies before the group
headed back out to continue celebrating. PFC KS rode to the apartment with

   2  The appellant was acquitted of one specification of rape in violation of Article
120(a)(1), 10 U.S.C § 920 (2012) involving the same victim, and one specification of
rape in violation of Article 120(a)(1), 10 U.S.C. § 920 (2007) involving another alleged
victim.
   3 This assignment of error was raised pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982).
   4   PFC KS is a member of the U.S. Army National Guard.
   5   Record at 325.

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                         United States v. Rollins, No. 201700039


the appellant. During the drive back to the apartment, PFC KS had removed
her high-heeled shoes because they were hurting her feet. Upon arriving at the
apartment, the appellant, “trying to be a gentleman[,]”6 carried the barefooted
PFC KS on his back across the paved parking lot to PS2 AS’s apartment
building.7 While the appellant remained outside of the building, PFC KS went
into the apartment and changed into more comfortable athletic shoes. When
the group left the apartment to resume their celebration, the appellant left his
car in the apartment parking lot and rode with DW to the first club.
    Over the next several hours, the group drank, danced, and celebrated at
multiple Norfolk area clubs.8 At the first club, the appellant and PFC KS
engaged in small talk and briefly danced. At the last club, after the appellant
pulled her down onto his lap while he was seated, PFC KS began to dance to
a song in a manner she and other witnesses described as “grinding”9 but “it
wasn’t a stripper type lap dance neither [sic][.]”10 After dancing in the chair for
“barely the first verse,” PFC KS went to the dance floor with PS2 AS and
another female friend and continued to dance.11 DW and the appellant joined
them for the final song of the evening. At times during this final song, PFC KS
and the appellant again danced in a “grinding” manner.12 These two brief
instances of “grinding” were the only sexually suggestive contacts between the
appellant and PFC KS.
   Shortly after the last song, all four left the club to go to a restaurant for
breakfast. As they were leaving, PS2 AS discovered she had lost her apartment
keys. Now unable to get back into PS2 AS’s apartment, PFC KS and PS2 AS
decided they would spend the night at DW’s home after taking the appellant
back to his vehicle.
    After eating, the group left the restaurant to return the appellant to his
vehicle. However, while on their way back to the apartment, the appellant told


   6   Id. at 298.
   7   Id. at 438.
    8 PFC KS described her level of intoxication after the night of drinking as “a bit

tipsy.” Id. at 532.
   9 Id. at 353, 445. Although “grinding” was not described with any specificity by
PFC KS or any other witness, based upon the context of the record, we interpret
“grinding” to mean closely dancing, or engaging in a form of popular close partner
dancing during which one rubs their buttocks against the crotch area of their dance
partner.
   10   Id. at 354.
   11   Id. at 445-46.
   12   Id. at 447.

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                       United States v. Rollins, No. 201700039


the group that he too had lost his keys and asked to be taken back to his home.
When the group arrived at the appellant’s home, he suggested that they all
just stay there for the night—which they did. The appellant showed them to
the rooms they would be sleeping in—with PS2 AS and DW in one bedroom
and PFC KS in the bedroom next to it. The appellant indicated he would sleep
in the room across the hall.
    Once settled into their room, PS2 AS sent DW to check on PFC KS. DW
observed that PFC KS was alone in the room, getting into bed, and confirmed
with her that she was all right. DW informed PS2 AS that PFC KS was fine
and that he had closed the door to her room. PS2 AS and DW then went to
sleep.
    PFC KS testified that when she got to her room she was feeling “very tired”
and “flopped” down on the bed to go to sleep—still wearing her dress and
athletic shoes.13 PFC KS testified that she remembered falling asleep on her
stomach with her arms under her pillow and then being awakened by the door
being pushed open. She then testified that within seconds she felt a man’s
genitals pressing against her thighs and his weight pushing her into the bed.
She was able to turn her head far enough to see that it was the appellant who
was holding her down as he began removing her underwear. PFC KS told the
appellant “no”14 and asked him to “stop.”15 She testified that the appellant
responded, “[n]o, he didn’t want to [stop]”16 and then inserted his penis into her
vagina. PFC KS explained that when she attempted to call out for PS2 AS,
“trying to get help for her to come in there[,]”17 the appellant wrapped his hand
around her mouth so tightly that she “couldn’t breathe.”18 PFC KS also
recounted that the appellant was “pinning [her] down on the back of [her] neck”
with his hand.19 She further described how as the appellant was inside of her
and holding her down, she tried unsuccessfully to get away from him.20 PFC
KS stated that the assault only ended when the appellant “had finished” and
described how she felt his ejaculate “between [her] legs” and “right above [her]



   13   Id. at 457.
   14   Id. at 531.
   15   Id. at 526, 531.
   16   Id. at 527.
   17   Id. at 467.
   18   Id. at 469.
   19   Id.
   20  PFC KS testified that she was five feet tall and weighed 125 pounds at the time
of the offense. Id. at 431.

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                       United States v. Rollins, No. 201700039


butt.”21 After the appellant had finished, PFC KS testified that he released her,
and she immediately went to PS2 AS and DW’s room. As she was walking out
of the room, the appellant told her “to not say anything to [PS2 AS].”22 Upset
and crying, PFC KS told PS2 AS that the appellant had “forced” himself on
her.23 PS2 AS asked PFC KS if the appellant had “penetrated her” to which
she responded “yes.”24 PS2 AS, PFC KS, and DW immediately left the
appellant’s home. Once they were outside the home, PS2 AS asked PFC KS if
she wanted to “go to the hospital” to which she replied “yes.”25
    At the hospital, PFC KS was then seen by Nurse TS, who examined and
treated PFC KS. During the examination, PFC KS provided an account of the
evening and the sexual assault. The Naval Criminal Investigative Service
(NCIS) was notified of the assault, and initiated an investigation. During the
investigation, PFC KS also provided NCIS a video-recorded account of the
evening and the sexual assault.
                                  II. DISCUSSION
A. Abatement
    The first AOE we address is whether the military judge abused her
discretion by refusing to abate the proceedings until PFC KS consented to an
interview with defense counsel. The appellant argues that because the trial
counsel had an opportunity to interview PFC KS pretrial and his defense team
did not, PFC KS’s refusal violated Article 46(a)’s guarantee of equal access to
witnesses. We disagree.
    We review a military judge’s failure to abate a proceeding for an abuse of
discretion. United States v. Simmermacher, 74 M.J. 196, 199 (C.A.A.F. 2015)
(citing United States v. Ivey, 55 M.J. 251, 256 (C.A.A.F. 2001)). An abuse of
discretion occurs when the military judge’s findings of facts are clearly
erroneous or the decision is influenced by an erroneous view of the law. United
States v. Lubich, 72 M.J. 170, 173 (C.A.A.F. 2013). “[W]hen judicial action is
taken in a discretionary matter, such action cannot be set aside by a reviewing
court unless it has a definite and firm conviction that the court below
committed a clear error of judgment in the conclusion it reached upon a
weighing of the relevant factors.” United States v. Houser, 36 M.J. 392, 397
(C.M.A. 1993) (citation and internal quotation marks omitted).


   21   Id. 471.
   22   Id. at 535.
   23   Id. at 309.
   24   Id. at 310, 474.
   25   Id. at 475.

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                         United States v. Rollins, No. 201700039


    We begin our review by examining whether the military judge’s findings of
fact were clearly erroneous. In announcing her ruling, the military judge made
several pertinent findings of fact: government counsel had not impeded or
restricted the appellant’s access to PFC KS; government counsel had only two
substantive conversations with PFC KS in preparation for the trial; PFC KS
was initially willing to answer interrogatories and participate in a limited
interview with the defense; the case had been before the court for
approximately a year; and the appellant had multiple avenues for obtaining
information and developing areas upon which to question PFC KS—to include
her video-recorded NCIS interview, all other discovery provided to the defense,
and the opportunity and ability to interview the numerous other witnesses who
were with PFC KS and the appellant throughout the night in question.26 We
find support for these findings in the record, do not find them to be clearly
erroneous, and we adopt them.
   We next look to see whether the military judge’s refusal to abate the
proceedings resulted from an erroneous view of the law. We find that it did not.
    Article 46(a), UCMJ, provides that “[t]he counsel for the government, the
counsel for the accused, and the court-martial shall have equal opportunity to
obtain witness and other evidence in accordance with such regulations as the
President may prescribe.” RULE FOR COURTS-MARTIAL (R.C.M.) 701, MANUAL
FOR COURTS-MARTIAL (MCM), UNITED STATES (2016 ed.) implements Article
46, UCMJ. R.C.M. 701(e) provides that “[e]ach party shall have . . . equal
opportunity to interview witnesses[,]” and “[n]o party may unreasonably
impede the access of another party to a witness or evidence.” Furthermore,
before trial, a witness cannot be compelled to speak to a trial defense counsel,
and “may refuse to answer the questions of a defense counsel, so long as the
[g]overnment has not induced that refusal.” United States v. Killebrew, 9 M.J.
154, 160 (C.M.A. 1980) (citations omitted). Harkening back to their decision in
Killebrew, our superior court has also affirmatively stated that a witness has
no obligation to submit to a pretrial interview. United States v. Morris, 24 M.J.
93, 95 (C.M.A. 1987).
   Here, the military judge found, and we agree, that the government counsel
did not impede or restrict in any manner the appellant’s access to PFC KS.
PFC KS was independently represented and advised by a victim’s legal counsel
(VLC). There is no evidence that government counsel played any role in
advising PFC KS whether to consent to an interview, nor is there evidence that
the government played any role in PFC KS’s ultimate decision not to
participate in any pretrial interview with the appellant’s trial defense counsel.
As confirmed by the military judge through her voir dire of PFC KS, it was


   26   Id. at 501-03.

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                         United States v. Rollins, No. 201700039


PFC KS—after consulting with her VLC and obtaining an understanding of
the “parameters or rules or conditions” of any such interview—who decided not
to submit to an interview by the appellant’s defense team.27
   Despite not finding an Article 46(a), UCMJ, violation, the military judge
did authorize the trial defense counsel to cross-examine PFC KS concerning
her refusal to consent to an interview.28 The defense did not pursue this line of
questioning.
    Even assuming, arguendo, that a violation of Article 46, UCMJ, occurred,
the appellant must demonstrate material prejudice. See United States v.
Adens, 56 M.J. at 732 (holding that “violations of a [service member’s] Article
46, UCMJ, rights that do not amount to constitutional error . . . must still be
tested under the material prejudice standard of Article 59(a), UCMJ.”). Article
59(a), UCMJ, states that “[a] finding or sentence of a court-martial may not be
held incorrect on the ground of an error of law unless the error materially
prejudices the substantial rights of the accused.” Without specifying the
“substantial prejudice” to him, the appellant generally argues that by not being
able to interview PFC KS before trial he was unable to adequately prepare for
the cross-examination. He claims to have only had “vague notions” of how PFC
KS would respond to the questioning, and this limited his defense team’s
ability to “aggressively” question PFC KS.29
   On appeal, the appellant fails to identify any areas of examination he would
have pursued at trial but could not due to the military judge’s ruling. We find
that he has failed to demonstrate prejudice. Accordingly, we find this AOE
without merit.
B. Statements for the purposes of diagnosis and treatment
   The appellant alleges that the military judge abused her discretion by
admitting hearsay statements PFC KS made to Nurse TS under the medical
diagnosis or treatment exception of MILITARY RULE OF EVIDENCE (MIL. R.
EVID.) 803(4), MCM. We disagree.
   As a general rule, hearsay is not admissible unless its admission is
determined by “a federal statute applicable in trial by court-martial,” or an
exception is provided by the Rules of Evidence. MIL. R. EVID. 802. MIL. R. EVID.
803(4) provides such an exception for statements that are “made for–and [are]
reasonably pertinent to–medical diagnosis or treatment and [describe] medical




   27   Id. at 495-96.
   28   Id. at 502.
   29   Appellant’s Brief of 31 Jul 2017 at 26-27.

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                       United States v. Rollins, No. 201700039


history[,] past or present symptoms or sensations[,] their inception[,] or their
general cause.”
    In United States v. Edens, 31 M.J. 267, 269 (C.M.A. 1990), our superior
court established a two-part test for evaluating hearsay statements offered for
admission under MIL. R. EVID. 803(4). “[F]irst, the statements must be made
for the purposes of ‘medical diagnosis or treatment’; and second, the [declarant]
must make the statement ‘with some expectation of receiving medical benefit
for the medical diagnosis or treatment that is being sought.” Id. (quoting
United States v. Deland, 22 M.J. 70, 75 (C.M.A. 1986)).30 “Thus, ‘[i]t is
incumbent upon the moving party to show not only that the medical person
was treating or diagnosing the patient, but also that the patient furnishing the
information was seeking such help.’” Id. (quoting United States v. Williamson,
26 M.J. 115, 118 (C.M.A. 1988)). The key factor in determining if the second
prong of the Edens test is met is “the state of mind or motive of the patient in
giving the information . . . and the expectation of the patient that if he or she
gives truthful information, it will help him or her be healed.” United States v.
Clark, 35 M.J. 98, 105 (C.M.A. 1992) (citation and internal quotation marks
omitted). Even though sexual assault medical forensic examinations may serve
dual purposes—medical diagnosis or treatment and evidence collection—the
“critical question is whether [the patient] had some expectation of treatment
when [the patient] talked to the caregivers.” United States v. Haner, 49 M.J.
72, 76 (C.A.A.F. 1998).
   In this case, the military judge did not explicitly place her findings of fact
on the record when announcing her ruling to admit the hearsay statements.
We find the following supported by the record and implicit in the military
judge’s ruling to admit the statements under MIL. R. EVID. 803(4).
    Nurse TS was a board certified nurse practitioner and clinical nurse
practitioner.31 As such, Nurse TS was a person to whom PFC KS could make
statements for the purpose of medical diagnosis or treatment as contemplated
by MIL. R. EVID. 803(4). See Haner, 49 M.J. at 77 (“MIL. R. EVID. 803(4) is not
limited to statements made to medically licensed doctors, but may include
others, such as persons providing medical treatment under the supervision or
direction of medical personnel.”); see also United States v. Cucuzzella, 66 M.J.
57, 62 (C.A.A.F. 2008) (statements made to a nurse were properly admitted

    30 “The rationale for [MIL. R. EVID.] 803(4) is the self-interested motivation to speak
the truth to a treating [medical provider] in order to receive proper care and the
necessity of the statement for a diagnosis or treatment.” United States v. Quigley, 35
M.J. 345, 347 (C.M.A. 1992) (citation omitted). “[A]n individual seeking relief from a
medical problem has incentive to make accurate statements.” MCM, App. 22, at A-22-
63 (citation omitted).
    31   Record at 550-52.

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                         United States v. Rollins, No. 201700039


under MIL. R. EVID. 803(4)). As an approximately 25-year-old adult at the time
of the assault,32 PFC KS would have known that a hospital is a place where
she could receive medical care. She would have understood that at a hospital
she would be evaluated for internal and external injuries resulting from sexual
assault, tested for sexually transmitted diseases, and treated with
preventative medications and contraceptives. PFC KS had ample reasons to
seek medical attention—the appellant’s use of force to quiet and subdue her,
possible injuries from the forced intercourse, and the risk of exposure to
sexually transmitted diseases and an unwanted pregnancy. Prior to conducting
the sexual assault medical forensic examination, Nurse TS explained to PFC
KS the purpose of the examination, what the examination would entail, how
she would conduct the examination, and that PFC KS could consent to any,
none, or all of the examination. Nurse TS testified that she provided this
explanation so that PFC KS could make an informed decision as to whether or
not to consent to the examination, prior to conducting the sexual assault
medical forensic examination.33 After receiving this explanation, PFC KS
consented to the entirety of the examination and provided Nurse TS with her
medical history,34 described in detail the circumstances of the assault, her
present symptoms and sensations, and their cause.35 Based upon PFC KS’s
description of the assault and the symptoms and sensations she described,
Nurse TS paid particular attention to the areas of potential injury—PFC KS’s
mouth, neck, abdomen, and genitals.36 Nurse TS also tested PFC KS for
possible sexually transmitted diseases37 and provided PFC KS with post-
sexual assault preventative medications.38
   With this factual basis in mind, we review de novo the military judge’s
conclusion of law—that the statements were admissible under MIL. R. EVID.
803(4). We conclude that the statements at issue were made by PFC KS to
Nurse TS for the purposes of “medical diagnosis or treatment,” and that when
PFC KS made the statements, she did so “with some expectation of receiving
medical benefit for the medical diagnosis or treatment [she] sought” and

   32 Id. at 321. PS2 AS testified that at the time of trial (September 2016) PFC KS

was 27 years old. The charged date of the offense was 22 November 2014.
   33 Id. at 553. Nurse TS testified that what was previously known as a “sexual
forensic examination” was now known as a “sexual assault medical forensic
examination” to more accurately describe the dual purpose of the examination.
   34   Id. at 559.
   35   Id. at 578-79.
   36   Id. at 578-84, 589-97.
   37   Id. at 571.
   38   Id. at 554, 571.

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                     United States v. Rollins, No. 201700039


ultimately received. Edens, 31 M.J. at 269 (citation and internal quotation
marks omitted). Accordingly, we find that the military judge did not abuse her
discretion in admitting the statements.
C. Factual sufficiency
   The appellant challenges the factual sufficiency of his conviction.39 We
disagree, and find the conviction factually sufficient.
    We review questions of factual sufficiency de novo. Art. 66(c), UCMJ;
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for
factual sufficiency is whether “after weighing the evidence in the record of trial
and recognizing that we did not see or hear the witnesses as did the trial court,
this court is convinced of the appellant’s guilt beyond a reasonable doubt.”
United States v. Rankin, 63 M.J. 552, 557 (N.M. Ct. Crim. App. 2006) (citing
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987) and Art. 66(c), UCMJ),
aff’d on other grounds, 64 M.J. 348 (C.A.A.F. 2007). In conducting this unique
appellate function, we take “a fresh, impartial look at the evidence,” applying
“neither a presumption of innocence nor a presumption of guilt” to “make [our]
own independent determination as to whether the evidence constitutes proof
of each required element beyond a reasonable doubt.” Washington, 57 M.J. at
399. Proof beyond a reasonable doubt does not mean, however, that the
evidence must be free from conflict. United States v. Goode, 54 M.J. 836, 841
(N-M. Ct. Crim. App. 2001).
    The appellant stands convicted of sexually assaulting PFC KS in violation
of Article 120(b)(1)(B), UCMJ. To sustain a conviction under this statue, we
must be convinced beyond a reasonable doubt that: (1) the appellant committed
a sexual act upon PFC KS, to wit: penetrated her vulva with his penis; and (2)
the appellant did so by causing bodily harm to PFC KS by holding her down.
MCM, Part IV, ¶ 45.b.(3)(b). Here, bodily harm means “any offensive touching
of another, however slight[.]” Id. at ¶ 45.a.(g)(3).




   39
      We note that the appellant does not challenge the legal sufficiency of the sexual
assault conviction evidence upon which the military judge returned a finding of guilty
for the sexual assault. However, we are mindful that Article 66(c), UCMJ requires us
“to conduct a de novo review of [both the] legal and factual sufficiency of the case.”
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citing United States v.
Cole, 31 M.J. 270, 272 (C.M.A. 1990). “The test for legal sufficiency of the evidence is
whether, considering the evidence in the light most favorable to the prosecution, a
reasonable factfinder could have found all the essential elements beyond a reasonable
doubt.” United States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002) (citation and
internal quotation marks omitted). We find the evidence legally sufficient.



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                         United States v. Rollins, No. 201700039


    The government has met its burden on the first element. PFC KS’s testified
that the appellant committed a sexual act upon her—penetration of her vulva
by his penis—and this testimony was corroborated by forensic evidence. The
appellant’s DNA was found on swabs taken from PFC KS’s cervix and anus,
and PFC KS’s DNA was found on swabs taken from the appellant’s penis. At
trial the appellant did not contest that he had sexual intercourse with PFC KS,
nor does he do so on appeal. Instead, the appellant argues that it is “impossible
to ignore the probability of [PFC KS’s] consent” given her flirtatious and
sexualized behavior towards him that evening.40 The appellant also argues
that we should find PFC KS’s account of their sexual encounter unreliable
given her motive to fabricate.
    The appellant avers on appeal that PFC KS “spent hours telegraphing her
willingness to have sexual relations with [him]” by allowing him to carry her
on his back and dancing with him “in a highly sexual manner,”41 that the record
contains no evidence that PFC KS struggled or resisted when the appellant
committed the sexual act upon her, and that her motive to protect her marriage
casts serious doubt on the credibility of her claims of sexual assault. This same
theory was presented to and rejected by the members.
    We, too, have considered PFC KS’s flirtatious and sexually suggestive
interactions with the appellant, as well as the possibility she may have
fabricated her claim of sexual assault to protect her marriage. We do not find
the claims sufficiently supported by the record to cause us reasonable doubt as
to the appellant’s guilt. Instead, we find PFC KS’s testimony to be credible,
consistent even through the crucible of cross-examination, and, in many
significant aspects, corroborated or supported by other witnesses, the forensic
evidence, and the surrounding circumstances.
    The appellant had only met PFC KS hours before sexually assaulting her.
Over the course of the evening, other than the very brief moments when PFC
KS was being carried by the appellant on his back and “grinding” with him, no
one observed any other form of intimate contact between them that evening.
PFC KS went to bed alone, and fell asleep clothed in the same dress she had
worn throughout the evening and still wearing athletic shoes. PFC KS was
awakened by the appellant when he entered her room uninvited. When the
appellant initiated his assault by holding her down, she communicated her lack
of consent to the appellant by telling him “no”42 and “stop.”43 Additionally, PFC
KS’s testimony that the appellant held her down and covered her mouth with

   40   Appellant’s Brief at 19.
   41   Id.
   42   Record at 531.
   43   Id. at 526.

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                    United States v. Rollins, No. 201700039


his hand as she attempted to call out for help, is supported, to some degree, by
the presence of a male DNA profile on the swabs taken from her neck and the
outside of her mouth. Finally, PFC KS’s actions and demeanor following the
incident belie appellant’s claim that she fabricated the allegation of sexual
assault to protect her marriage. Instead, they were consistent with someone
who had just experienced a sexual assault rather than a secretive but
regrettable consensual sexual tryst. She immediately fled the room, went
directly to the safety of her sister-in-law, where she tearfully told PS2 AS that
she had just been sexually assaulted by the appellant.
    After weighing the evidence in the record of trial, and taking into account
that we did not personally see or hear the witnesses, we too are firmly
convinced of the appellant’s guilt. Rankin, 63 M.J. at 557.
D. Victim’s unsworn statement at sentencing
    The appellant complains that the military judge erred by allowing PFC KS
to provide unsworn testimony in accordance with R.C.M. 1001A(b)(4) and, by
doing so, violated the Article 42(b), UCMJ, requirement that all witnesses be
sworn. We disagree.
   The interpretation of R.C.M. 1001A is a question of law we review de novo.
United States v. Barker, 77 M.J. 377, 382 (C.A.A.F. 2018). The question here is
whether R.C.M. 1001A(b)(4) is in conflict with the UCMJ—specifically Article
42(b), UCMJ. We conclude that it is not.
    The first principle in statutory construction is that “courts must give effect
to the clear meaning of statutes as written and questions of statutory
interpretation should begin and end . . . with [statutory] text, giving each word
its ordinary, contemporary, and common meaning.” United States v. Andrews,
77 M.J. 393 (C.A.A.F. 2018) (citations and internal quotation marks omitted)
(alterations in original); see also United States v. Schell, 72 M.J. 339, 343
(C.A.A.F. 2013) (“Unless the text of a statute is ambiguous, the plain language
of a statute will control unless it leads to an absurd result.”) (citations and
internal quotation marks omitted)). “We apply these principles [of statutory
construction] when we interpret the rules and other provisions in the [MCM]
as well.” Andrews, 77 M.J. at 400 n.8.
    When we examine provisions under the principles of statutory
construction, we must also seek to construe independent provisions of a statute
so that they harmonize rather than conflict. United States v. Christian, 63 M.J.
205, 208 (C.A.A.F. 2006). Articles 42 and 6b, UCMJ, are independent
provisions of the same statute—the UCMJ. Likewise, when construing
Presidential executive orders (such as R.C.M. 1001A) and a congressional
enactment that covers the same subject, we should construe them, when



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possible, to be in harmony rather than in conflict. United States v. LeGrange,
3 C.M.R. 76, 78 (C.M.A. 1952).
   Article 42(b) provides that “[e]ach witness before a court-martial shall be
examined on oath.” (emphasis added). Stated alternatively, if the person
providing information to the court-martial is not a witness there is no
requirement that they be sworn.
    By enacting Article 6b(a)(4)(B), UCMJ, Congress granted a victim the right
to be “reasonably heard” at “[a] sentencing hearing” concerning the offense of
which he or she is the victim.44 Through the powers granted him in Article 36,
UCMJ, the President implemented Article 6b, UCMJ, via R.C.M. 1001A.
Barker, 77 M.J. at 383.
    A victim is one “who has suffered direct physical, emotional, or pecuniary
harm as a result of the commission of an offense of which the accused was
found guilty.” R.C.M. 1001A(b)(1). A victim’s right to be reasonably heard at a
sentencing proceeding “is independent of whether the victim testified during
findings or is called to testify [as a witness] under R.C.M. 1001.” R.C.M.
1001A(a). R.C.M. 1001A(b)(4)(B) allows a victim to exercise his or her right to
be reasonably heard at a sentencing proceeding in non-capital cases by making
an unsworn statement.
     Procedurally, the R.C.M. 1001A(b)(4) right of a victim to make an unsworn
statement is akin to an accused’s R.C.M. 1001 right to make an unsworn
statement. Like an accused, a victim may, personally or through counsel, make
an unsworn statement orally, in writing, or both, and may not be cross-
examined by counsel or examined by the court-martial upon it. R.C.M.
1001A(e); cf. R.C.M. 1001(c)(2)(C) (unsworn statement by an accused may be
made personally or through counsel, and it may be made be made orally, in
writing, or both, and may not be cross-examined or examined by the court upon
it). Even though a victim may not be cross-examined or examined on their
unsworn statement, such statements are not unfettered. Statements of fact
contained within the unsworn statement may be rebutted by the trial counsel
and defense counsel. R.C.M. 1001A(e). Additionally, the statement must
comply with the requirements of R.C.M. 1001A. See R.C.M. 1001A(e)(2),
Discussion (“A victim’s unsworn statement should not exceed what is
permitted under R.C.M. 1001A(c) . . . . Upon objection by either party or sua
sponte, a military judge may stop or interrupt a victim’s unsworn statement
that includes matters outside the scope of R.C.M. 1001A(c).”). The scope of


   44  The National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-
66, § 1701(b)(2)(A) (2013), incorporated The Crime Victims’ Right Act (CVRA), 18
U.S.C. § 3771, into Article 6b, UCMJ, effective 26 December 2013. The CVRA includes
the right of crime victims to be “reasonably heard” at sentencing.

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matters to be addressed by a victim in his or her unsworn statement is limited
to victim impact and matters in mitigation. R.C.M. 1001A(c). Victim impact is
the “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).
    Although Article 42(b), UCMJ, requires a witness to be sworn prior to
giving testimony at a court-martial, a victim exercising their right to be
reasonably heard at a sentencing proceeding under Article 6b, UCMJ, through
the procedure established by R.C.M. 1001A, “is not considered a witness for
the purposes of Article 42(b)[, UCMJ].” R.C.M. 1001A(a). Furthermore, our
superior court has explicitly stated that an unsworn statement made by a
victim during a sentencing proceeding “does not constitute witness testimony.”
Barker, 77 M.J. at 382; cf. United States v. Satterley, 52 M.J. 782, 785 (A.F. Ct.
Crim. App. 1999), aff’d on other grounds, 55 M.J. 168 (C.A.A.F. 2001) (an
unsworn statement given by the accused “is not a witness testifying under
oath.”).
    Prior to the enactment of Article 6b, UCMJ, and the promulgation of R.C.M.
1001A, a victim’s right to be heard at sentencing was grounded in R.C.M.
1001(b)(4), MCM (2012 ed.). Prior to the enactment of Article 6b, UCMJ, and
the promulgation of R.C.M. 1001A, absent an agreement with the defense, a
victim was required to take the stand as a witness and testify about the impact
of an offense under oath, subject to cross-examination by opposing counsel and
examination by the court. R.C.M. 1001(b)(4), MCM (2012 ed.). This procedure
stood in stark contrast to that of United States district courts. The rights
afforded a victim by Congress in Article 6b, UCMJ, and the ability of a victim
to make an unsworn statement at a sentencing proceeding under R.C.M.
1001A(b)(4) brought sentencing proceedings in the military justice system
more in line with the United States district courts. See FED. R. CRIM. P.
32(i)(4)(B) (requiring a United States district court to “address any victim of
the crime who is present at sentencing and . . . permit the victim to be
reasonably heard.”) In the federal district court context, a victim is “reasonably
heard” when presenting the court with an unsworn statement. 45




   45 Federal courts have interpreted the right of a victim to be “reasonably heard” at
a sentencing proceeding to include the right to provide an unsworn statement to the
court. Other jurisdictions have also addressed this issue. See United States v. Grigg,
434 F.App’x 530, 533 (6th Cir. 2011) (unpublished op.) (citing United States v. Myers,
402 F. App’x 844, 845 (4th Cir. 2010)); United States v. Swenson, No. 1:13-cr-00091-
BLW, 2014 U.S. Dist. LEXIS 115402, at *3-4 (D. Idaho Aug. 18, 2014); United States
v. Shrader, No. 1:09-0270, 2010 U.S. Dist. LEXIS 121766, at *7-8 (S.D. W. Va. Nov. 16,
2010); United States v. Marcello, 370 F. Supp. 2d 745, 750 (N.D. Ill. 2005)).

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    The oath requirement of Article 42(b), UCMJ, does not apply to a victim
providing an unsworn statement at a sentencing proceeding because such a
victim—like an accused who provides an unsworn statement in sentencing—is
not a witness for the purposes of Article 42(b), UCMJ. Accordingly, we find the
appellant’s argument without merit.
E. Constitutionality of non-unanimous five-member panel findings
    The appellant argues that his court-martial findings, made by a non-
unanimous panel of five members, fails to satisfy the constitutional
requirements of due process. Challenges to the constitutionality of the findings
of other similarly composed courts-martial have been repeatedly rejected.
Because the death penalty was not mandatory for any of the appellant’s
charged offenses, a two-thirds vote by his five-member panel, and not
unanimity, was the minimum required to convict him of any charged offense.
Art. 52(a)(2), UCMJ; R.C.M. 921(c)(2)(B). See United States v. Brown, 65 M.J.
356, 359 (C.A.A.F. 2007) (“[M]ilitary criminal practice requires neither
unanimous panel members, nor panel agreement on one theory of liability, as
long as two-thirds of the panel members agree that the government has proven
all elements of the offense.”); United States v. Viola, 27 M.J. 456 (C.M.A. 1988)
(summary disposition); United States v. Wilt, No. 201300274, 2015 CCA LEXIS
57 at *24-25, unpublished op. (N-M. Ct. Crim. App. 19 Feb 2015). Having
reviewed this AOE, we find it without merit.46
                                   III. CONCLUSION
   The findings and sentence are affirmed.
   Senior Judge MARKS and Senior Judge JONES concur.
                                                 For the Court



                                                 R.H. TROIDL
                                                 Clerk of Court




   46   See United States v. Clifton, 35 M.J. 79, 81 (C.M.A. 1992).

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