                       UNITED STATES, Appellee

                                    v.

       Roberto RODRIGUEZ-RIVERA, Personnelman Second Class
                       U.S. Navy, Appellant

                              No. 05-0270

                        Crim. App. No. 9900859

       United States Court of Appeals for the Armed Forces

                         Argued April 5, 2006

                        Decided August 9, 2006

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J.,
filed a separate opinion concurring in part and in the result.

                                 Counsel

For Appellant:    Lieutenant Brian L. Mizer, JAGC, USNR (argued).

For Appellee: Major Kevin C. Harris, USMC (argued); Commander
Charles N. Purnell, JAGC, USN (on brief).

Military Judge:   Kenneth A. Krantz




       This opinion is subject to revision before final publication.
United States v. Rodriguez-Rivera, No. 05-0270/MC

     Judge ERDMANN delivered the opinion of the court.

     Personnelman Second Class Roberto Rodriguez-Rivera was

convicted at a general court-martial of making false official

statements, committing forcible sodomy on a child under twelve,

taking indecent liberties with a female under the age of

sixteen, and committing indecent acts with a female under the

age of sixteen, in violation of Articles 107, 125 and 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907, 925,

934 (2000).   He was sentenced to a reduction in grade to E-1,

forfeiture of all pay and allowances, confinement for twelve

years and a dishonorable discharge.   The convening authority

approved the sentence and the United States Navy-Marine Corps

Court of Criminal Appeals affirmed the findings and sentence.

United States v. Rodriguez-Rivera, 60 M.J. 843, 848-49 (N-M. Ct.

Crim. App. 2005).

     We granted review of the following issues:1

                                I.
          WHETHER TRIAL COUNSEL COMMITTED
          PROSECUTORIAL MISCONDUCT BY (1) VIOLATING
          THE MILITARY JUDGE’S ORDERS REGARDING
          WITNESS SEQUESTRATION; (2) BY IMPROPERLY
          COACHING THE SIX-YEAR-OLD COMPLAINING
          WITNESS DURING HER DIRECT TESTIMONY; (3) BY
          PURPOSEFULLY ALLOWING OTHER WITNESSES TO

1
  We heard argument in this case on April 5, 2006, at the
University of Denver, Sturm College of Law, Denver, Colorado, as
part of the Court’s “Project Outreach.” See United States v.
Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice
was developed as part of a public awareness program to
demonstrate the operation of a Federal Court of Appeals and the
military justice system.

                                 2
United States v. Rodriguez-Rivera, No. 05-0270/MC

          IMPROPERLY COACH THE COMPLAINING WITNESS
          DURING HER DIRECT TESTIMONY; (4) BY FAILING
          TO BE CANDID WITH THE COURT-MARTIAL
          REGARDING THE COACHING OF THE WITNESS BY
          TRIAL COUNSEL AND OTHER WITNESSES; AND (5)
          BY FAILING TO BE CANDID WITH THE COURT-
          MARTIAL ABOUT NOTES PASSED FROM A
          PROSECUTION WITNESS DURING THE DEFENSE’S
          CASE.

                               II.
          WHETHER THE MILITARY JUDGE ERRED TO THE
          SUBSTANTIAL PREJUDICE OF APPELLANT BY
          ADMITTING OVER DEFENSE OBJECTION, THE
          INADMISSIBLE HEARSAY STATEMENTS OF THE
          COMPLAINANT WITNESS.

                               III.
          WHETHER THE MILITARY JUDGE ERRED TO THE
          SUBSTANTIAL PREJUDICE OF APPELLANT BY
          GRANTING THE GOVERNMENT’S CHALLENGE FOR
          CAUSE OF CHIEF ELECTRONIC TECHNICIAN DANIEL
          J. [ABEYTA].

                               IV.
          WHETHER THE STAFF JUDGE ADVOCATE ERRED BY
          FAILING TO SERVE APPELLANT WITH A LETTER
          FROM TRIAL COUNSEL TO THE CONVENING
          AUTHORITY THAT NEGATIVELY CHARACTERIZED
          APPELLANT’S UNSWORN STATEMENT.

                                V.
          WHETHER THE EVIDENCE PRESENTED ON THE MERITS
          WAS LEGALLY INSUFFICIENT TO PROVE BEYOND A
          REASONABLE DOUBT THAT APPELLANT TOOK
          INDECENT LIBERTIES WITH JK BY WATCHING
          PORNOGRAPHIC MOVIES WITH JK.

                               VI.
          WHETHER APPELLANT WAS DENIED DUE PROCESS OF
          LAW WHERE THE COMPLETION OF THE FIRST LEVEL
          OF APPELLATE REVIEW TOOK MORE THAN SIX
          YEARS.




                                3
United States v. Rodriguez-Rivera, No. 05-0270/MC

                            BACKGROUND

     From August 1997 through December 1997, Rodriguez-Rivera

and his wife babysat for their neighbor’s child, JK, at Royal

Air Force Station, West Ruislip, England.    In March of 1998,

when JK was five, she disclosed to her parents that she had been

sexually abused by Rodriguez-Rivera.     The day following this

disclosure, JK’s mother arranged a meeting with the base Family

Advocacy Representative that was also attended by a Naval

Criminal Investigative Service (NCIS) agent.    Appellate Exhibit

LV reflects that during this meeting JK stated that on numerous

occasions Rodriguez-Rivera had sucked and kissed her “pee pee”,

she had sucked his “pee pee”, he had showered with her and

rubbed soap on her, and he had masturbated in front of her.       In

addition, JK also told the NCIS agent that she had watched adult

movies with Rodriguez-Rivera while in his bed.    An initial

medical examination of JK disclosed no evidence of any trauma to

her vagina.

     During a NCIS interview, Rodriguez-Rivera denied having any

improper or sexual contact with JK.    He did admit to possessing

pornographic videos and allowing JK to take baths while he was

babysitting her.   A search of Rodriguez-Rivera’s home resulted

in the seizure of pornographic videos.    Other facts relevant to

the disposition of the issues are set forth in the Discussion

section.



                                 4
United States v. Rodriguez-Rivera, No. 05-0270/MC

                                 DISCUSSION

I.    PROSECUTORIAL MISCONDUCT

          Rodriguez-Rivera alleges that the following actions by

trial counsel constituted prosecutorial misconduct:       (1)

violation of the military judge’s orders regarding witness

sequestration; (2) improperly coaching the victim; (3) allowing

other witnesses to coach the victim; (4) failing to be candid

with the court-martial regarding the alleged witness coaching;

and (5) failing to be candid with the court-martial about notes

received from a prosecution witness during the defense case.        We

will first consider the initial four allegations pertaining to

witness coaching and then address the final allegation.

     A.    Witness sequestration and witness coaching allegations

            1.   Factual Background

          JK was six years old at the time of trial.   JK’s testimony

on direct examination was not consistent with her earlier

statements to her parents and the Family Advocacy

Representative.       At trial JK testified only that Rodriguez-

Rivera had sucked her “pee pee” more than one time and that she

had seen a “sex movie . . . [a]t Rod’s house” but that

Rodriguez-Rivera had done nothing more.       Following repeated

attempts by the trial counsel to elicit additional testimony,

the defense counsel requested an Article 39(a), UCMJ, 10 U.S.C.

§ 839(a) (2000), session at which he asked the military judge to



                                      5
United States v. Rodriguez-Rivera, No. 05-0270/MC

prohibit the Government from pursuing this line of questioning

as JK had testified that Rodriguez-Rivera had not done anything

else to her.   The military judge sustained the defense objection

on the ground that the questions had been asked and answered.

Following that ruling, trial counsel asked the military judge

for permission to impeach JK’s testimony with her prior

inconsistent statements.   Defense counsel then requested a

recess to consider that issue.

     Following the recess defense counsel expressed concern to

the military judge that trial counsel had been in a room with JK

during the break.   The assistant trial counsel explained that JK

was concerned about the delay in her testimony and asked whether

she had done something wrong and that he had advised her that

she had not done anything wrong but she might have to continue

her testimony.   The military judge then granted a defense

request to voir dire JK about her understanding of what had been

said to her during the break.

     During voir dire the defense asked JK what had happened

during the break and JK responded that she had gone to the trial

counsel’s office with her “momma” and “daddy.”   She said that

the assistant trial counsel “wanted [her] to tell him the rest

of the story” and that the trial counsel told her not to be

scared.   JK testified that after the trial counsel left the room

her parents told her she had not told the entire story and that



                                 6
United States v. Rodriguez-Rivera, No. 05-0270/MC

she needed to go back into court and say more.   She also said

they talked to her about some of the things that had happened to

her.

       After JK’s voir dire defense counsel argued to the military

judge that JK should not be allowed to testify further before

the members because she was influenced by what happened during

the break.   The Government responded that there was no need to

prohibit her from testifying because there was no evidence of

manipulation or danger of prejudice.   Both parties noted that

the facts regarding what occurred during the break could be used

to impeach JK on cross-examination and defense counsel requested

a proffer from the assistant trial counsel as to what had been

said so that he could use it for that purpose.

       The assistant trial counsel stated that JK had asked him

what was going on and whether she had done anything wrong, and

he told her “no.”   He also told her that she might have to

testify again and if she did so she would need to tell the

truth.    She responded that she would tell the truth and stated

that she had already done so.   The trial counsel then said, “she

started to talk about other things,” and she told him she had

not testified about Appellant putting his “pee pee” in her mouth

and about the masturbation (which she indicated by moving her

hands).   He said that the victim’s parents were already in the

room when he came in and were there when he left.   When he



                                  7
United States v. Rodriguez-Rivera, No. 05-0270/MC

entered the room a second time trial counsel was talking to JK

and “telling her not to be afraid.”

     The military judge ruled that the members would be allowed

to hear further testimony from JK.    He also noted:

           It goes without saying that the events since
           the last open session with the members are
           fair game for cross-examination along the
           lines of the voir dire already conducted,
           and to the extent that that makes the child
           less comfortable or makes cross-examination
           last longer than it otherwise would have,
           that’s what happens when you talk to a
           witness, or when parents talk to a child
           witness during a break of this kind; issues
           like that arise, and I will permit the
           defense to explore them fully.

     JK returned to the stand and detailed for the members how

Rodriguez-Rivera masturbated and ejaculated on her.     She

indicated that he “soaped her” and washed her “pee pee” and also

testified that Rodriguez-Rivera sucked her “pee pee” and she

sucked his “pee pee.”   On cross-examination defense counsel

questioned JK about what happened during the break.     JK told the

members that her parents and assistant trial counsel told her to

tell the truth and to tell the rest of the story.      In response

to a member’s question, JK also stated that neither her parents

nor either trial counsel told her what to say “for the rest of

the story.”

     2.   Discussion

     Prosecutorial misconduct is generally defined as “action or

inaction by a prosecutor in violation of some legal norm or


                                 8
United States v. Rodriguez-Rivera, No. 05-0270/MC

standard, e.g., a constitutional provision, a statute, a Manual

rule, or an applicable professional ethics canon.”     United

States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996); United States v.

Thompkins, 58 M.J. 43, 47 (C.A.A.F. 2003).     In analyzing

allegations of prosecutorial misconduct, “courts should gauge

the overall effect of counsel’s conduct on the trial, and not

counsel’s personal blameworthiness.”     Thompkins, 58 M.J. at 47

(citing Smith v. Phillips, 455 U.S. 209, 220 (1982)).

   Where the military judge and the lower court have made

factual determinations regarding the events surrounding

allegations of misconduct, we will accept those determinations

unless they are clearly erroneous.      See United States v. Warner,

62 M.J. 114, 124 (C.A.A.F. 2005) (“Relevant facts are drawn from

the record of trial, and we accept the factual findings of the

courts of criminal appeals unless they are clearly erroneous.”).

If prosecutorial misconduct is found, this court will examine

the record as a whole to determine whether Appellant was

prejudiced by the misconduct.      United States v. Fletcher, 62

M.J. 175, 184 (C.A.A.F. 2005).     This court weighs three factors

in evaluating the impact of prosecutorial misconduct on a trial:

(1) the severity of the misconduct; (2) the measures adopted to

cure the misconduct; and (3) the weight of the evidence

supporting the conviction.   Id.




                                    9
United States v. Rodriguez-Rivera, No. 05-0270/MC

       a.   Violation of Sequestration Order

       There was no formal sequestration order issued by the

military judge at trial and the record is unclear as to whether

the military judge explicitly warned JK’s parents not to discuss

their testimony with other witnesses.    Rodriguez-Rivera argues

that a sequestration order can be implied because the military

judge denied a request from the Government to allow one or both

of JK’s parents to be present when she testified.    The lower

court found that this ruling did not amount to a formal

sequestration order and we agree.     Rodriguez-Rivera, 60 M.J. at

847.   There may be cases, based upon the dialogue between the

parties and the military judge, where there is a sound basis in

the record for concluding that there was a clear, common

understanding between the military judge and the parties as to

sequestration, without issuance of a formal order.    In such a

case, violating that clear understanding could constitute

prosecutorial misconduct.   In this case, there is neither a

formal nor a clearly understood sequestration order.    Unless the

record demonstrates that witnesses were to be sequestrated, the

prosecution cannot be found to have intentionally committed

misconduct.   As a result, we conclude that there was no

prosecutorial misconduct in this allegation.




                                 10
United States v. Rodriguez-Rivera, No. 05-0270/MC

     b.   Coaching by Trial Counsel, Assistant Trial Counsel, or
          JK’s Parents

     The lower court concluded that the military judge did not

prohibit the prosecutors from discussing JK’s testimony with her

and also found that they did not discuss the substance of her

testimony with her.    Id.   Rather, the prosecutors did no more

than encourage JK “to testify to the whole truth rather than a

part of it.”   Id.    The lower court concluded that there was no

prosecutorial misconduct in allowing JK’s parents “to admonish

her to tell the whole truth while testifying[,]” and that “it is

appropriate and reasonable for a young child witness to remain

in the company of parents or care providers while awaiting trial

participation.”   Id. at 847-48.

     As a general matter, we have permitted greater latitude and

flexibility when it comes to treatment and testimony of child

witnesses.   See United States v. McCollum, 58 M.J. 323, 330-31

(C.A.A.F. 2003) (authorizing remote live testimony under certain

circumstances); United States v. Anderson, 51 M.J. 145, 150

(C.A.A.F. 1999) (upholding military judge’s decision to allow a

child to testify behind a screen);      United States v. Morgan, 31

M.J. 43, 48 (C.M.A. 1990) (giving military judge flexibility in

determining a child’s competency as a witness); United States v.

Jones, 26 M.J. 197, 198 (C.M.A. 1988) (permitting trial counsel

to lead retarded, seventeen-year-old witness); see also Paramore

v. Filion, 293 F. Supp. 2d 285, 292 (S.D.N.Y. 2003) (“[C]ourts


                                   11
United States v. Rodriguez-Rivera, No. 05-0270/MC

generally recognize that child witnesses present special

challenges when testifying in sexual abuse cases and that these

challenges must be recognized and accommodated.”).

     JK testified that the assistant trial counsel “wanted [her]

to tell him the rest of the story” and that the trial counsel

told her not to be scared.   The assistant trial counsel

testified that JK volunteered these incidents in response to his

telling her that she needed to be sure to tell the truth.   While

JK did testify that she and her parents discussed incidents with

Rodriguez-Rivera which she did not initially mention at trial,

she went on to state that they discussed the incidents because

her previous testimony “wasn’t the whole story.”    The lower

court’s findings that both trial counsel and JK’s parents did

nothing more than encourage JK to tell the truth and to tell the

whole story was not clearly erroneous.   We therefore conclude

that no prosecutorial misconduct occurred.

     While we conclude there was no prosecutorial misconduct, we

also note that to the extent the military judge did have

concerns about any influence the discussion during the break may

have had on JK, he mitigated that influence by allowing cross-

examination of JK concerning the events during the break and the

possibility that JK was coached or coerced.   Defense counsel

asked JK several questions about these events during cross-

examination.   If there was any danger that the meetings with JK



                                12
United States v. Rodriguez-Rivera, No. 05-0270/MC

might have influenced her testimony, the members were made fully

aware of this possibility.

     c.   Assistant Trial Counsel’s Candor Regarding the
          Discussions that Occurred During the Break

     The military judge and the lower court also found no merit

in Rodriguez-Rivera’s contentions that trial counsel was less

than candid about the discussions that occurred during the

break.    Rodriguez-Rivera, 60 M.J. at 848.   The military judge

told assistant trial counsel:

             It is equally clear that [JK’s] perceptions
             of the meeting are different from yours, and
             we are dealing with a child and the
             perceptions of a child, and the emotional
             impact of adult behavior on a child, so the
             difference in perception doesn’t cause me to
             doubt the accuracy of your summary, but it
             is the impact on the child witness that
             counts.

While there was some disagreement about the discussions that

occurred between JK, both trial counsel, and JK’s parents, we

agree that in this case a difference in perception between the

assistant trial counsel and a child witness is not a sufficient

basis for finding that the assistant trial counsel was dishonest

with the military judge.    We conclude that the lower court’s

finding that the assistant trial counsel was candid regarding

the discussions that occurred during the break was not clearly

erroneous.    Therefore, we conclude that there was no

prosecutorial misconduct arising from this allegation.




                                  13
United States v. Rodriguez-Rivera, No. 05-0270/MC

  B.     Notes from a witness during the trial

          1.   Factual Background

          At trial the Government called Captain Barbara Craig, a

pediatrician who had examined JK, as an expert witness.    During

the defense case Dr. Craig was observed passing notes to the

trial counsel.     When the Government recalled Dr. Craig to

testify on rebuttal, the defense objected on the basis that Dr.

Craig had listened to other witnesses and had collaborated with

the Government by passing notes to the trial counsel during the

trial.

       The military judge ruled that the trial counsel had to turn

over the notes that Dr. Craig had passed to trial counsel.

Trial counsel objected because the notes contained notations

made by the trial counsel.     The military judge permitted trial

counsel to redact those notations, and the court then took a

short recess.     When the court reconvened, trial counsel advised

the military judge that the notes that Dr. Craig had passed were

not written by Dr. Craig, but that Dr. Craig was merely relaying

notes passed to trial counsel from other people.    The military

judge accepted trial counsel’s explanation, allowed Dr. Craig’s

rebuttal testimony and did not require trial counsel to turn

over the notes.




                                    14
United States v. Rodriguez-Rivera, No. 05-0270/MC

     2.   Discussion

     Rodriguez-Rivera asserts that the trial counsel exhibited a

lack of candor about notes passed to him by Dr. Craig during the

defense’s case.   In ruling that Dr. Craig’s rebuttal testimony

would be allowed, however, the military judge accepted trial

counsel’s explanation that Dr. Craig was passing notes from

someone other than Dr. Craig herself.   The military judge had

the opportunity to observe the proceedings and the explanation

of the trial counsel.   We see no basis in the record to conclude

that the military judge’s finding that trial counsel was candid

with regard to this incident was clearly erroneous.   Therefore,

there is no basis to conclude that prosecutorial misconduct

occurred with regard to these notes.

     C.   Conclusion

     In summary, we find that Rodriguez-Rivera has failed to

meet his burden of showing that the lower court’s determinations

concerning the facts underlying the allegations of prosecutorial

misconduct were clearly erroneous.   We therefore affirm the

Court of Criminal Appeals on these issues.

II. ADMISSIBILITY OF DR. CRAIG’S TESTIMONY REGARDING STATEMENTS
MADE BY JK

     A.   Factual Background

     After JK reported the incidents to her mother she was

examined by Commander V. D. Morgan, a doctor at the Navy Medical

Clinic in London.   Doctor Morgan concluded that there was “zero


                                15
United States v. Rodriguez-Rivera, No. 05-0270/MC

evidence of trauma or infection to [JK’s] genitalia or anus.”

JK’s mother sought to have her examined by someone who was “[a]

specialist in child sex abuse cases,” and tried unsuccessfully

to make an appointment with a specialist in London.    She then

renewed a request to her command that she be transferred to the

United States to find the proper care for JK.

      After JK and her family returned to the United States, JK

was examined by Dr. Craig, an experienced pediatrician and

director of the Armed Forces Center for Child Protection at the

National Naval Medical Center at Bethesda, Maryland.   Dr. Craig

was recommended to JK’s parents by trial counsel who also

contacted Dr. Craig to request that she see JK.   Dr. Craig’s

examination of JK occurred the same day as Rodriquez-Rivera’s

Article 32, UCMJ, 10 U.S.C. § 832 (2000), hearing was held.

      At trial, Dr. Craig testified regarding her medical

examination of JK and her subsequent conclusion that JK had

injuries consistent with “some kind of penetrating injury . . .

.”   Dr. Craig testified that her examination of JK was necessary

because JK “had not yet had a thorough medical evaluation” and

she noted that Dr. Morgan was a “family practitioner” who “does

not specialize in child sexual abuse.”   She also testified that

JK told her a “person named Rod touched her genital area with

his mouth, and that she touched that person’s penis with her

mouth . . . .”



                                16
United States v. Rodriguez-Rivera, No. 05-0270/MC

      Prior to trial, Rodriguez-Rivera made a motion to exclude

the testimony of Dr. Craig concerning statements made to her by

JK on the grounds that it was inadmissible hearsay.   He argued

that the purpose of Dr. Craig’s examination was not medical

diagnosis or treatment but rather it was “done for the purposes

of litigation.”   In ruling upon the motion, the military judge

considered an affidavit from Dr. Craig.   In that affidavit Dr.

Craig stated that trial counsel “was aware that there are very

few pediatricians in the military with clinical experience in

[child sexual abuse] . . . .”   Therefore, the purpose of her

examination was to “conduct a thorough medical examination” and

to give a “second opinion regarding [JK]’s health and if she

needed any further medical or psychological intervention . . .

.”   Dr. Craig explained to JK why she was seeing her and JK

expressed her understanding that “doctors make you better” and

that she had to tell the doctor the truth about what was wrong

in order to get better.   The military judge denied the motion

and found that the testimony was admissible on the basis of

Military Rule of Evidence (M.R.E.) 803(4), the medical diagnosis

and treatment exception to the hearsay rule.

      B.   Discussion

      M.R.E. 803(4) provides an exception to the general hearsay

rule and allows the admission of statements made for the purpose

of medical diagnosis or treatment.



                                17
United States v. Rodriguez-Rivera, No. 05-0270/MC

          Statements which are offered as exceptions
          to hearsay under Mil. R. Evid. 803(4) must
          satisfy two conditions: first the
          statements must be made for the purposes of
          “medical diagnosis or treatment”; and
          second, the patient must make the statement
          “with some expectation of receiving medical
          benefit for the medical diagnosis or
          treatment that is being sought.”

United States v. Edens, 31 M.J. 267, 269 (C.M.A. 1990) (quoting

United States v. Deland, 22 M.J. 70, 75 (C.M.A. 1986)).     The

military judge found that the “criteria for the medical hearsay

exception have been met in this case” and denied the defense

motion to exclude Dr. Craig’s testimony regarding statements

made to her by JK.   The military judge’s decision to admit this

evidence is reviewed by this court for abuse of discretion.

United States v. Hollis, 57 M.J. 74, 79 (C.A.A.F. 2002).

     Rodriguez-Rivera argues that since the examination with Dr.

Craig was arranged by the trial counsel the same day as

Rodriguez-Rivera’s Article 32, UCMJ, hearing, the examination

clearly was not for the purpose of medical treatment but rather

was for the purpose of allowing hearsay testimony into evidence

through M.R.E. 803(4).   This court has previously concluded that

the referral of a victim to a medical professional by trial

counsel “is not a critical factor in deciding whether the

medical exception applies to the statements she gave to those

treating her.   The critical question is whether she had some




                                18
United States v. Rodriguez-Rivera, No. 05-0270/MC

expectation of treatment when she talked to the caregivers.”

United States v. Haner, 49 M.J. 72, 76 (C.A.A.F. 1998).

     The military judge’s finding that the “criteria for the

medical hearsay exception have been met in this case” are

supported by Dr. Craig’s affidavit.   Dr. Craig explained to JK

why she was coming to see her and JK expressed her understanding

that “doctors make you better” and that she had to tell the

doctor the truth about what was wrong in order to get better.

The purpose of Dr. Craig’s examination was to “conduct a

thorough medical examination” and to provide a “second opinion

regarding [JK]’s health and if she needed any further medical or

psychological intervention . . . .”

     Under the circumstances of this case, the fact that trial

counsel initiated the examination of JK by Dr. Craig is not a

sufficient reason to hold that the military judge’s findings

were clearly erroneous.   When she was referred to see Dr. Craig

JK had not been seen by a doctor who specialized in child sexual

abuse cases despite her mother’s repeated attempts to have her

seen by such an expert.   Furthermore, Dr. Craig had extensive

experience in treating suspected victims of child sexual abuse

and was qualified to provide the type of examination that JK

needed and had been unable to obtain.   Because the military

judge’s findings that Dr. Craig saw JK for the purpose of

medical diagnosis and treatment, and that JK expected to receive



                                19
United States v. Rodriguez-Rivera, No. 05-0270/MC

medical treatment when she saw Dr. Craig were not clearly

erroneous, we hold that his decision to admit the statements

made by JK to Dr. Craig under M.R.E. 803(4) was not an abuse of

discretion.2

III.   CHALLENGE FOR CAUSE OF CHIEF ABEYTA

       A.    Factual Background

       During the voir dire of potential members, Chief Electronic

Technician (ETC) Daniel J. Abeyta stated that he believed

“children can be coerced just a little bit easier [than adults]”

and that because a child was nervous he or she might be more

likely to “just say what they think you want them to say.”   He

also had the following exchange with trial counsel:

       TC:   Would you be able to follow an instruction
             telling you that the testimony of one
             witness whom you believe should be enough to
             make a decision in this case. In other
             words, if the government, if we only present
             one witness but you believed that witness is
             that going to be enough for you to make a
             decision in this case without any other
             testimony or evidence?

       MBR (ETC ABEYTA): It would depend on what the
            witness said?


2
  While not the situation here, we note that military judges must
remain vigilant in ensuring that the hearsay exception for
statements made for the purposes of medical diagnosis or
treatment is not used as a subterfuge. In this case, while
trial counsel could have reasonably anticipated that Dr. Craig
would testify regarding JK’s medical condition as a result of
trial counsel’s referral, the record also reflects that Dr.
Craig legitimately saw JK for the purpose of medical diagnosis
and treatment.



                                  20
United States v. Rodriguez-Rivera, No. 05-0270/MC

     TC:   But just as a general concept, if that is
           all we gave you, is that going to be enough,
           or are you going to kind of want something
           more?

     MBR (ETC ABEYTA):   I would want more.   Let me put
          it that way.

     TC:   What about if that witness were a child?
           Would you even feel more like they would
           need more to corroborate that or wouldn’t it
           make a difference if it was an adult vice
           [sic] a child?

     MBR (ETC ABEYTA): Either way, if it was an adult
          or a child, one witness might not be enough.

     TC:   Okay. Because you feel like the government
           needs to give you more than that?

     MBR (ETC ABEYTA): I feel it is the government’s
          obligation to come up with as much evidence
          as possible.

     TC:   Do you understand that sometimes the
           circumstances of the allegations make it so
           that there is actually only one person who
           actually witnessed a particular event?

     MBR (ETC ABEYTA):   Yes.

     TC:   Okay. So bearing that in mind, would you
           still feel you kind of needed something else
           to corroborate that or another witness’
           testimony to sort of enhance the other
           person’s testimony?

     MBR (ETC ABEYTA):   Being there only one witness
          and --

     TC:   For example in this case, you know, from the
           charge sheet you can see that there are
           allegations of child sexual abuse. Clearly
           that is the type of situation where there
           may be only one eyewitness. So, based on
           that, would you feel that if you only had
           one witness come into court that you would



                                21
United States v. Rodriguez-Rivera, No. 05-0270/MC

            still kind of want something to corroborate
            that?

     MBR (ETC ABEYTA): Yes, I might want a little bit
          more, and, like I said, it would depend on
          what the witness would say if their [sic]
          testimony --

     TC:    But in general you would feel like you
            wanted something more than that?

     MBR (ETC ABEYTA):    In general, yes.

     The Government challenged three members for cause including

Abeyta.    The Government argued that all three members had

indicated they would require more than the testimony of the

child witness to convict someone of child abuse and that such

statements indicated they would place a higher burden on the

prosecution than the law requires.    The defense did not object

to the challenge of one of the members, but argued that there

was insufficient basis for excusing either of the other two.

The military judge denied the challenge against one of the other

two members but granted the prosecution’s challenge for cause

against Abeyta.   The military judge explained that he granted

the challenge:    “Because of his views not only on wanting more

than the testimony of one witness but of his view on the

potential suggestibility or coercibility of children and

vulnerability to having answers guided.”

     B.    Discussion

     In evaluating a military judge’s ruling on a challenge for

cause, this court has found it appropriate to recognize the


                                 22
United States v. Rodriguez-Rivera, No. 05-0270/MC

military judge’s superior position to evaluate the demeanor of

court members.   United States v. McLaren, 38 M.J. 112, 118

(C.M.A. 1993).   We will not, therefore, reverse a military

judge’s ruling on a challenge for cause absent a clear abuse of

discretion.   Id.; United States v. White, 36 M.J. 284, 287

(C.M.A. 1993).   We also have noted that there is “no basis for

application of the ‘liberal grant’ policy when a military judge

is ruling on the Government’s challenges for cause.”   United

States v. James, 61 M.J. 132, 139 (C.A.A.F. 2005).

     The burden at trial is on the Government to prove every

element of the offenses charged beyond a reasonable doubt.    The

testimony of only one witness may be enough to meet this burden

so long as the members find that the witness’s testimony is

relevant and is sufficiently credible.   See United States v.

McGinty, 38 M.J. 131, 132 (C.M.A. 1993) (determination that one

witness is more believable than another is sufficient); United

States v. Arias, 3 M.J. 436, 437-38 (C.M.A. 1977) (evidence

legally sufficient where “the accused’s guilt turned ‘basically’

upon whether the trial judge believed the child or the

accused”); see also Weiler v. United States, 323 U.S. 606, 608

(1945) (“Triers of fact in our fact-finding tribunals are, with

rare exceptions, free in the exercise of their honest judgment

to prefer the testimony of a single witness to that of many.”);

Paramore, 293 F. Supp. 2d at 293 (“In some states, including New



                                23
United States v. Rodriguez-Rivera, No. 05-0270/MC

York, children’s uncorroborated sworn testimonies are legally

sufficient to convict a defendant on criminal charges.”).    If a

potential member states he would require the Government to

produce more evidence than the testimony of one witness in order

to find any element beyond a reasonable doubt, then he is

holding the Government to a higher standard than the law

requires and should not be allowed to sit on the panel.

     Abeyta’s responses to questioning by the trial counsel

clearly indicated that he would want “a little bit more” than

just the testimony of one witness in order to conclude that the

Government had met its burden.    Even when he agreed that there

might only be one witness in a case of child sexual abuse such

as this one, he persisted in his belief that he would want the

Government to provide additional evidence.   He did not waiver in

his stance, even when trial counsel gave him the opportunity to

clarify or change his position.    Because Abeyta maintained that

he would require more than the testimony of one witness for the

Government to meet its burden, we conclude that the military

judge did not abuse his discretion in granting the Government’s

challenge for cause against Abeyta.    We recognize that defense

counsel attempted to rehabilitate Abeyta, but that

rehabilitation fell short of establishing sufficient grounds

upon which to conclude that the military judge abused his

discretion in granting the challenge for cause.



                                  24
United States v. Rodriguez-Rivera, No. 05-0270/MC

IV. FAILURE TO SERVE COMMENTS ON RODRIGUEZ-RIVERA’S UNSWORN
STATEMENT

     A.    Factual Background

     Before the convening authority acted on the case,

Rodriguez-Rivera submitted a request for clemency.   The request

was sent through the trial counsel, who forwarded the request to

the convening authority with a note that read:

     Recommend denial due to the serious nature of the
     crimes this criminal committed upon a four and five
     year old girl over a five-month period of time. In
     addition, when given the opportunity during his
     unsworn statement in the sentencing phase of the
     trial, the accused failed to exhibit any remorse
     whatsoever for what he had done to this little girl
     and her family.

This note was never served on Rodriguez-Rivera.

     B.    Discussion

     Rule for Courts-Martial 1107(b)(3)(A) requires that prior

to taking action on a court-martial sentence a convening

authority must consider the results of trial, the recommendation

of the staff judge advocate and any clemency submission from the

accused.   Rule for Courts-Martial 1107(b)(3)(B)(iii) further

provides that the convening authority may also consider

additional matters that he deems appropriate but “if the

convening authority considers matters adverse to the accused

from outside the record, with knowledge of which the accused is

not chargeable, the accused shall be notified and given the

opportunity to rebut.”



                                25
United States v. Rodriguez-Rivera, No. 05-0270/MC

     The Government and Rodriguez-Rivera disagree on whether the

trial counsel’s note constitutes a matter adverse to Rodriguez-

Rivera from outside the record.    However, we need not reach that

question because we conclude that there was no prejudice to

Rodriguez-Rivera from the inclusion of comment on his clemency

request.   See United States v. Farley, 60 M.J. 492, 493

(C.A.A.F. 2005) (“We need not decide whether there was error,

because any error was harmless.”); United States v. Phanphil, 57

M.J. 6, 11 (C.A.A.F. 2002) (“We need not resolve the conflicting

interpretations of 18 U.S.C. § 922(a) because any error was

harmless beyond a reasonable doubt.”).

     Where “matters adverse to the accused from outside the

record” have been erroneously considered by the convening

authority, this court has stated:

            [W]e will require appellant to demonstrate
            prejudice by stating what, if anything,
            would have been submitted to “deny, counter,
            or explain” the new matter. . . . We believe
            that the threshold should be low, and if an
            appellant makes some colorable showing of
            possible prejudice, we will give that
            appellant the benefit of the doubt and “we
            will not speculate on what the convening
            authority might have done” if defense
            counsel had been given an opportunity to
            comment.

United States v. Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997)

(citing Unites States v. Jones, 44 M.J. 242, 244 (C.A.A.F.

1996); United States. v. DeGrocco, 23 M.J. 146, 148 (C.M.A.

1987)).    Rodriguez-Rivera asserts that the trial counsel


                                  26
United States v. Rodriguez-Rivera, No. 05-0270/MC

inaccurately characterized his unsworn statement by stating that

he showed no remorse.   He argues he would have rebutted this

characterization by showing that “the accused did show remorse

during his unsworn statement in that he cried and apologized to

the Navy, his command, and to his shipmates.   In addition he

asked for the mercy of the Court.”

       Rodriguez-Rivera’s assertions regarding his proposed

rebuttal to trial counsel’s statements do not rise to a

“colorable showing of possible prejudice.”   Chatman, 46 M.J. at

324.   We have examined the unsworn statement in detail.

Contrary to Rodriguez-Rivera’s claim, his unsworn statement did

not express remorse for his misconduct or for his victim.     His

apology was directed to his “shipmates, my command and the Navy”

and was for any “inconvenience that I caused” rather then for

any harm to the victim.   At no point did Rodriquez-Rivera

express any regret or similar emotion toward the victim or her

family.   The proposed rebuttal to trial counsel’s statement was,

in short, inaccurate.   Thus, we conclude that whether or not

there was error in failing to serve trial counsel’s comments

upon the defense, Rodriguez-Rivera has failed to sustain his

burden of making a colorable show of prejudice.




                                 27
United States v. Rodriguez-Rivera, No. 05-0270/MC

V.   LEGAL SUFFICIENCY OF THE EVIDENCE

      A.    Factual Background

      Specification 3 of Charge III alleges that Rodriguez-Rivera

took indecent liberties with JK, a female under the age of

sixteen, by watching pornographic movies with her.   JK testified

that she saw a “sex movie . . . [a]t Rod’s house . . . [i]n his

bedroom.”    She testified that the “sex movie” had a lady with

red shoes in it and that the lady had long hair.    She also

testified that “[a]ll of [the movies] had ladies and boys.”

      Trial counsel asked her whether she or Rodriguez-Rivera got

the movie and she responded that she “didn’t know because I saw

it when I was there.    I didn’t know when he bought it.”   When

asked whether she or Rodriguez-Rivera put the movie “in the

machine to play it” she responded that she did not remember.       A

member asked if “anyone else ever show[ed her] a sex movie any

other time, except for Mr. Rod” and she answered “no.”      A

pornographic tape was admitted at trial and a portion shown to

the members containing a scene with a woman with red shoes

matching JK’s description.

      At the close of the Government’s case, trial defense

counsel made a motion to dismiss the indecent liberties

specification and a separate specification alleging, in part,

that Rodriguez-Rivera made a false official statement by denying

that he watched pornographic videos while JK was in his home.



                                 28
United States v. Rodriguez-Rivera, No. 05-0270/MC

Trial defense counsel argued there was no evidence Rodriguez-

Rivera watched pornographic movies with the victim or gave a

false official statement when he stated he “never watched

pornographic videotapes while JK was in his home.”    In making

findings of fact on the motion, the military judge stated he did

not find evidence that Rodriguez-Rivera “ever watched

pornographic videotapes while [JK] was in his home.”    He granted

the defense motion to dismiss the portion of the specification

alleging that Rodriguez-Rivera had made a false official

statement regarding this incident.     However, the military judge

declined to dismiss the indecent liberties specification which

alleged that Rodriguez-Rivera watched a pornographic movie with

JK.

      B.   Discussion

      In determining whether the evidence is legally sufficient,

we “‘view[] the evidence in the light most favorable to the

prosecution’” and decide whether “‘any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.’”     United States v. Brown, 55 M.J. 375, 385

(C.A.A.F. 2001) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)).   The specification at issue here alleges that

Rodriguez-Rivera took indecent liberties with JK by watching

pornographic movies with her.    The Manual for Courts-Martial,

United States (2005 ed.) (MCM) provides that “[w]hen a person is



                                  29
United States v. Rodriguez-Rivera, No. 05-0270/MC

charged with taking indecent liberties, the liberties must be

taken in the physical presence of the child . . . .”   MCM pt.

IV, para. 87.c(2).   We must determine, therefore, whether a

rationale trier of fact could find beyond a reasonable doubt

that Rodriguez-Rivera was physically present with JK when she

watched pornographic movies at his house.

     We first note that the military judge specifically

concluded that he did not find any evidence Rodriguez-Rivera

“ever watched pornographic videotapes while [JK] was in his

home.”   Looking at the record in its entirety, we see no

evidence that could lead a reasonable member to conclude that

Rodriguez-Rivera watched the pornographic movie “with” JK.3

While there is evidence to establish that JK watched a

pornographic movie at Rodriguez-Rivera’s house, she never

testified that he was present when she did so.   She testified

that she did not know or did not remember how the tape got to

the house or who put it in the machine to play it.   Viewing the

evidence in the light most favorable to the prosecution, we find

that there is no basis in the record to conclude that Rodriguez-

Rivera was present when JK watched the pornographic videotape.



3
  During her meeting with the Family Advocacy Representative and
the NCIS agent, JK did state that she watched the movies while
in bed with Rodriguez-Rivera at his home. The written summary
of that meeting was admitted as an appellate exhibit but was not
admitted as a trial exhibit and therefore was not before the
members.

                                30
United States v. Rodriguez-Rivera, No. 05-0270/MC

      Accordingly, we will reverse the lower court and set aside

the guilty finding for Specification 3 of Charge III.    However,

because we conclude that this error was harmless with regard to

sentencing we will not order a rehearing or reassessment and

will affirm the sentence as approved by the lower court.    See

Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000).

VI.   APPELLATE DELAY

      In analyzing whether appellate delay has violated the due

process rights of an accused we first look at whether the delay

in question is facially unreasonable.    United States v. Moreno,

63 M.J. 129, 136 (C.A.A.F. 2006).    If it is, then this court

examines and balances the four factors set forth in Barker v.

Wingo, 407 U.S. 514, 530 (1972):     (1) the length of the delay;

(2) the reasons for the delay; (3) the appellant’s assertion of

the right to timely review and appeal; and (4) prejudice.

Moreno, 63 M.J. at 135-36; United States v. Jones, 61 M.J. 80,

83 (C.A.A.F. 2005); Toohey v. United States, 60 M.J. 100, 102

(C.A.A.F. 2004).   If we conclude that an appellant has been

denied the due process right to speedy post-trial review and

appeal, “we grant relief unless this court is convinced beyond a

reasonable doubt that the constitutional error is harmless.”

United States v. Toohey, 63 M.J. __ (24) (C.A.A.F. 2006).

Whether an appellant has been denied the due process right to a

speedy post-trial review and appeal, and whether constitutional



                                31
United States v. Rodriguez-Rivera, No. 05-0270/MC

error is harmless beyond a reasonable doubt are reviewed de

novo.    United States v. Cendejas, 62 M.J. 334, 337 (C.A.A.F.

2006) (constitutional error); United States v. Kreutzer, 61 M.J.

293, 299 (C.A.A.F. 2005); United States v. Rodriguez, 60 M.J.

239, 246 (C.A.A.F. 2004) (due process); United States v. Cooper,

58 M.J. 54, 58 (C.A.A.F. 2003) (due process).

        As a general matter, we can dispose of an issue by assuming

error and proceeding directly to the conclusion that any error

was harmless.    See United States v. Gorence, 61 M.J. 171, 174

(C.A.A.F. 2005) (any error in permitting evidence of preservice

drug use was harmless); United States v. Lovett, 59 M.J. 230,

234 (C.A.A.F. 2004) (assuming error in admitting hearsay, the

error was harmless); United States v. Bolkan, 55 M.J. 425, 428

(C.A.A.F. 2001) (any error in defense counsel’s concession that

a punitive discharge was an appropriate punishment was

harmless).    Similarly, issues involving possible constitutional

error can be resolved by assuming error and concluding that the

error is harmless beyond a reasonable doubt.    See United States

v. Cuento, 60 M.J. 106, 111 (C.A.A.F. 2004) (assuming that there

was error and that the error was of constitutional dimension,

error was harmless beyond a reasonable doubt); see also United

States v. Saintaude, 61 M.J. 175, 183 (C.A.A.F. 2005) (court

need not determine whether counsel’s performance was

constitutionally deficient where it can determine that any such



                                  32
United States v. Rodriguez-Rivera, No. 05-0270/MC

error would not have been prejudicial).    Thus, in cases

involving claims that an appellant has been denied his due

process right to speedy post-trial review and appeal, we may

look initially to whether the denial of due process, if any, is

harmless beyond a reasonable doubt.   We will apply a similar

analysis where, even though the denial of due process cannot be

said to be harmless beyond a reasonable doubt, there is no

reasonable, meaningful relief available.

     Assuming that the delay of over six years to complete

Rodriguez-Rivera’s appeal of right denied him his right to

speedy review and appeal, we decline to afford additional

relief.   In Moreno, we set forth a non-exhaustive list of the

types of relief available for denial of speedy post-trial review

or appeal.   63 M.J. at 143.   We have considered the totality of

the circumstances and the types of relief that may be

appropriate here, in addition to setting aside the findings of

guilty to Specification 3 of Charge III.   Because Rodriguez-

Rivera has served his full term of confinement, reduction of the

confinement or confinement credits would afford him no

meaningful relief.   Further, reduction of adjudged forfeitures

would have no meaningful effect in light of the provisions for

automatic forfeitures.   See Article 58b, UCMJ, 10 U.S.C. § 858b

(2000).   Reducing the period of confinement enough to have a

significant impact upon collected forfeitures would also require



                                 33
United States v. Rodriguez-Rivera, No. 05-0270/MC

a dramatic reduction in the period of confinement that is

unwarranted under the circumstances of this case.

     In coming to this conclusion, we have not lost sight of the

fact that Rodriguez-Rivera was deprived, for more than six

years, of the resolution of a legal claim on which he prevailed

and for which he was entitled to dismissal of certain of the

guilty findings against him.    However, to fashion relief that

would be actual and meaningful in this case would be

disproportionate to the possible harm generated from the delay.

Accordingly, we conclude that no additional relief is

appropriate or warranted in this case.

                              CONCLUSION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals as to the finding of guilty to Specification

3 of Charge III is reversed.    The finding of guilty to

Specification 3 of Charge III is set aside and that

specification is dismissed.    The decision of the United States

Navy-Marine Corps Court of Criminal Appeals as to the remaining

findings and the sentence is affirmed.




                                  34
United States v. Rodriguez-Rivera, No. 05-0270


     CRAWFORD, Judge (concurring in part and in the result):

     I agree with the majority as to all the issues except Issue

VI (APPELLATE DELAY) and the affirmance of the remaining

findings and sentence.   I dissociate myself, however, from this

Court’s analysis of that issue and its conclusion that Appellant

was denied his due process right to speedy review and appeal.

This Court’s analysis and conclusion are based on a prospective

rule set forth in United States v. Moreno, 63 M.J. 129 (C.A.A.F.

2006), and its misapplication of the Barker v. Wingo, 407 U.S.

514 (1972), test.   See Moreno, 63 M.J. at 144 (Crawford, J.,

concurring in part and dissenting in part).
