                        United States, Appellee


                                      v.


                  Jason A. HART, Airman First Class
                      U.S. Air Force, Appellant

                                No. 00-0416

                          Crim. App. No. 32881


      United States Court of Appeals for the Armed Forces

                        Argued November 9, 2000

                        Decided September 19, 2001




                                   Counsel

For Appellant: Captain Kyle R. Jacobson (argued); Colonel
James R. Wise, Major Maria A. Fried, and Major Gilbert J.
Andia, Jr., USAFR (on brief); Lieutenant Colonel Timothy W.
Murphy.

For Appellee: Captain Peter J. Camp (argued); Colonel
Anthony P. Dattilo and Lieutenant Colonel Ronald A. Rodgers
(on brief).

Military Judge:       John J. Powers


THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Hart, No. 00-0416/AF


     PER CURIAM:

     Contrary to his pleas, appellant was convicted of two

specifications of larceny, in violation of Article 121,

Uniform Code of Military Justice, 10 USC § 921.    A panel of

officer members sitting as a general court-martial

sentenced him to a bad-conduct discharge, 24 months’

confinement, total forfeitures, and reduction to the lowest

enlisted grade.    The convening authority approved the

sentence as adjudged and the court below affirmed.    We

granted review of the following issue:

          WHETHER THE MILITARY JUDGE ERRED BY ALLOWING
          OPINION/REPUTATION TESTIMONY ABOUT APPELLANT’S
          CREDIBILITY WHEN APPELLANT NEVER TESTIFIED
          AND THE HEARSAY TESTIMONY USED TO JUSTIFY ITS
          ADMISSION WAS NOT OBJECTED TO BY THE GOVERNMENT,
          AND WAS COLLATERAL OR FOR LIMITED PURPOSES ONLY.

                             FACTS

     Before going on temporary duty from Kadena Air Base,

Okinawa, Japan, to Saudi Arabia in September 1996, Senior

Airman Davis gave appellant a special power of attorney to

take care of his car.    When Davis returned, he noticed

several items were missing from his car.    When he

confronted appellant on several occasions about the missing

items, he received different responses.    Appellant contends

that he had an agreement to buy the car; thus he could take

items from the car.    Davis testified that in a telephone



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United States v. Hart, No. 00-0416/AF


conversation, appellant told him that he had replaced the

engine in Davis’ car with a more powerful engine.

     Likewise, in October 1996, Airman Cox departed Kadena

Air Base on leave and left appellant with a power of

attorney to take care of various personal items, including

a video camera, and to sell his car.    Instead of selling

the car, appellant gave the car to Airman Price.

     Airman Oda testified about being “offered” a video

camera when defense counsel asked him:    “[D]id you actually

see the video camera?”   Oda responded, “Yes Sir.   I seen it

after someone else bought it.”    Oda also testified that

appellant said the camera “belonged to him.”      Based on

these statements from appellant introduced by the defense,

the prosecution on several occasions introduced opinion and

reputation evidence as to appellant’s untruthfulness.     The

defense had elicited the statements from Davis and Oda to

show appellant’s “mistaken belief” that appellant had

permission to dispose of the property.    Final Brief at 8.

     In United States v. Goldwire, 55 MJ 139, 143 (2001),

we recognized that Mil.R.Evid. 806, Manual for Courts-

Martial, United States (1995 ed.), applies by its express

terms to “Mil.R.Evid. 801(d)(2), (C), (D), or (E).”    We

also held that it applies to introduction of hearsay.     Id.

at 143 (maj. op) and 146 (Sullivan, J., concurring in the


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United States v. Hart, No. 00-0416/AF


result).   Once appellant’s pretrial statement is admitted

[for purposes of Mil.R.Evid. 806], appellant is treated as

a testifying witness and the Government may properly

introduce reputation and opinion evidence to impeach

appellant’s truthfulness.   United States v. Goldwire,

supra.   Both the statements by Davis and Oda that directly

or indirectly indicate appellant’s ownership of the items

alleged under the larceny specification were offered as

state-of-mind evidence to establish the defense’s theories

of the case -- that appellant mistakenly believed he could

dispose of the property as he wished.   Trial counsel argued

that these statements were admitted under Mil.R.Evid.

803(3) and defense counsel did not dispute that statement.

Its introduction under the state-of-mind exception formed

the predicate for impeachment explicitly recognized in

Mil.R.Evid. 806.   Moreover, even if the statements were not

hearsay defense, the statements put the credibility of

appellant’s mistake-of-fact defense at issue.   Thus, we

hold that once defense counsel’s cross-examination sought

to introduce appellant’s exculpatory statements, it was

appropriate to introduce character evidence as to

appellant’s untruthfulness.

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.


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United States v. Hart, 00-0416/AF



    SULLIVAN, Judge (concurring in the result):


    The granted issue in this case asks:

          WHETHER THE MILITARY JUDGE ERRED BY
          ALLOWING OPINION/REPUTATION TESTIMONY
          ABOUT APPELLANT’S CREDIBILITY WHEN
          APPELLANT NEVER TESTIFIED AND THE HEARSAY
          TESTIMONY USED TO JUSTIFY ITS ADMISSION
          WAS NOT OBJECTED TO BY THE GOVERNMENT, AND
          WAS COLLATERAL OR FOR LIMITED PURPOSES
          ONLY.


(Emphasis added.)    In my view, the majority has incorrectly

characterized the out–of-court statements of appellant as

admissible hearsay under Mil. R. Evid. 803(3).    Nevertheless, I

agree with the result reached by the majority because the defense

failed to limit use of this evidence at trial to a nonhearsay

purpose (see Mil. R. Evid. 105) and, accordingly, impeachment of

appellant was permitted under Mil.R.Evid. 806.    See United States

v. Goldwire, 55 MJ 139, 146 (2001) (Sullivan, J. concurring in

the result).



    As a starting point, I note that the military judge’s

authority for admitting the challenged impeachment evidence was

Mil. R. Evid. 806.    It states in pertinent part:



            When a hearsay statement, or a statement
          defined in Mil. R. Evid. 801(d)(2)(C),
          (D), or (E), has been admitted in
          evidence, the credibility of the declarant
          may be attacked, and if attacked may be
          supported, by any evidence which would be
United States v. Hart, 00-0416/AF


            admissible for those purposes if declarant
            had testified as a witness. . . ..


(Emphasis added.)    If the testimony justifying admission of the

impeachment evidence was “hearsay,” as stated by the defense in

the granted issue, appellant’s argument must fail.    This is

because the rule on its face authorizes admission of impeachment

evidence as to an out-of-court declarant when hearsay evidence is

admitted.    See generally, David Sonenshein, Impeaching The

Hearsay Declarant, 74 Temple L. Rev. 163, 165 n.13, 167 (Spring

2001).



    However, close examination of appellant’s brief clearly

indicates that he is arguing that the evidence purportedly

justifying impeachment in this case under Mil. R. Evid. 806 was

not hearsay, i.e., not “offered to prove the truth of the matter

asserted” in those statements.”    Final brief at 4, 5.   The

military judge at trial disagreed with the defense on this point

and ruled that this evidence was being used for hearsay purposes

and permitted the Government to impeach the accused. (R. 180)

Accordingly, the question before us is whether the military judge

correctly ruled the out-of-court statements constituted hearsay

under Mil. R. Evid. 801(c).



    The majority, adopting trial counsel’s argument, asserts that

the out-of-court statements of appellant were offered to show his



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United States v. Hart, 00-0416/AF


state of mind and hence were admissible hearsay under Mil. R.

Evid. 803(3). (R. 179)   I note, however, Mil. R. Evid. 803

states:



            The following are not excluded by the
          hearsay rule, even though the declarant is
          available as a witness:

                              *   *   *

          (3) Then existing mental, emotional, or
          physical condition. A statement of the
          declarant’s then existing state of mind,
          emotion, sensation, or physical condition
          (such as intent, plan, motive, design,
          mental feeling, pain, and bodily health),
          but not including a statement of memory or
          belief to prove the fact remembered or
          believed unless it relates to the
          execution, revocation, identification, or
          terms of declarant’s will.


(Emphasis added.)   Although I agree that some of the out-of-court

declarations in this case were state-of-mind evidence, they were

not “statement[s] of the declarant’s then existing state of mind”

under Mil. R. Evid. 803(3).   None of the out-of-court statements

constituted a direct assertion as to appellant’s state of mind as

required by this exception to this rule.



    The late Justice Mosk of the California Supreme Court has

commented on the type of error made by the majority in

characterizing appellant’s out-of-court statements as admissible

hearsay under Mil. R. Evid. 803(3).       See People v. Green, 609




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United States v. Hart, 00-0416/AF


P.2d 468, 480-81 (Cal. 1980).   He pointed out in a footnote

(n.9):



          When offered for such purpose the
          statement was simply not hearsay. (Evid.
          Code § 1200; People v. Duran (1976) 16
          Cal.3d 282,295, 127 Cal.Rptr. 618, 545
          P.2d 1322.) Both parties make the common
          mistake of treating this statement as an
          item of hearsay that is saved by an
          exception to the hearsay rule for
          statements of a declarant’s then-existing
          “state of mind.” (Evid. Code § 1250.) Yet
          the writers have long pointed out the
          distinction between (1) using an out-of-
          court declarant’s assertion of his state
          of mind (e.g., A testifies that he heard
          the declarant B say, “I am afraid of C”)
          to prove that mental state directly, and
          (2) using his assertion of other facts
          (e.g., A testifies that he heard B say, “C
          threatened to kill me”) to prove the same
          mental state indirectly. The first is
          hearsay because it is used testimonially,
          i.e., it is offered for the purpose of
          inducing the trier of fact to believe in
          the truth of the assertion itself, just as
          if the declarant had so testified on the
          witness stand. The second is not hearsay
          because it is used circumstantially, i.e.,
          it is offered as evidence of conduct on
          the part of the declarant (B reported that
          C threatened to kill him) from which the
          trier of fact is asked to draw an
          inference as to the declarant’s state of
          mind at the time (B fears C). (See, e.g.,
          6 Wigmore, Evidence (Chadbourn rev. ed.
          1976) §§ 1715, 1790; Assem. Com. on
          Judiciary, com. foll. Evid. Code, § 1250,
          2d par.; Jefferson, Cal. Evidence
          Benchbook (1972) § 14.1, p. 168, caveat;
          Witkin, Cal. Evidence (1966) §§ 466-467,
          556.)) For present purposes, however, the
          failure to observe this distinction is
          immaterial.




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United States v. Hart, 00-0416/AF


(Some emphasis added.)

   Defense counsel in this case clearly did not agree that the

evidence he had previously introduced was admissible hearsay

under Mil. R. Evid. 803(3).    (R. 177-78)   On the contrary, he

stated that three of the out-of-court statements of appellant

were offered to show the state of mind of the person to whom

appellant’s statements were made or to contradict a witness

testifying that these statements were not made. (R. 177-78) (see

appendix)    He also stated concerning the fourth statement:



            With regard to the camcorder, the question
            was asked, yes “Did he tell you?” ”He said
            it was his?” That goes to, again, yes,
            that goes to Airman Hart’s state of mind
            as to what he was thinking on his own.


(R. 178)    This is quite similar to the nonhearsay situation which

Justice Mosk spoke of in People v. Green, supra, where the out-

of-court statement is used inferentially, not as directly

asserting a state of mind.



    Nevertheless, I concur in the result reached by the majority

in this case.    The key factual issue was whether appellant had

agreements with his fellow servicemembers to dispose of their

property as if it were his.    Appellant elicited evidence of his

out-of-court statements which, if believed, would tend to show

appellant had such agreements.    Moreover, he did not request that

this evidence be used for a non-hearsay purpose alone at the time


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United States v. Hart, 00-0416/AF


of admission of these statements.    See Mil. R. Evid. 105.   Also,

when he later made his Mil. R. Evid. 806 objection, he made no

requests for limiting instructions concerning his asserted

limited purpose in introducing this evidence. (R. 132-34, 177-

80).   Accordingly, I would resolve this case against appellant

because of his failure to limit use of this evidence to its non-

hearsay uses ((see United States v. Burton, 937 F.2d 324, 327-28

(7th Cir. 1991) (Government’s failure to limit its evidence to

non-hearsay use permitted impeachment by defense under Fed. R.

Evid. 806)) and his later use of these statements for hearsay

purposes. (R. 255)   See United States v. Goldwire, supra

(Sullivan, J., concurring in the result).    See generally

Sonenshein, supra at 167.




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United States v. Hart, 00-0416/AF




                            APPENDIX



    DC:     Thank you, Your Honor. I’ll just start off by
            addressing the particular statements that the
            prosecution has brought up. The first, with regard
            to the engine, Your Honor, it’s, again, the main
            point there for asking the question was not so much
            as to whether Airman Hart actually changed out the
            engine in the automobile as it was to say that, yes,
            he made that statement in and of itself to Airman
            Davis, and Airman Davis knew, at the time, that that
            was beyond the scope of the power of attorney.

            What we’re concerned about there is Airman Davis’
            reaction, not whether the engine was, in fact,
            actually changed out. It’s his reaction that Airman
            Hart, acting beyond the scope of the power of
            attorney, is what’s important, and that’s what made
            that question relevant.

            With regard to Airman Hart’s offer to pay for the
            items and such, that was, as I recall, the testimony
            that was specifically the point of trying to impeach
            Airman Davis. As I recall Airman Davis’ testimony—
            (Conferred with CDC.). As I recall, Your Honor, his
            testimony was basically he was selling some of the
            items that Airman Hart had put into the car and that
            Airman Hart had not said anything along the lines of
            “Please keep, please hold onto this; please don’t
            sell it until we make some sort of an arrangement.”
            That’s why I wanted to introduce that particular
            statement from Airman Davis’ testimony at the
            Article 32 hearing that Airman Hart had, in fact,
            said that.

            With regard to the allotment, again, that was
            specifically trying to bring out the point that
            Airman Hart had called him up and said, “Hey, let’s
            meet.” Basically, whether or not it was to consider
            an allotment, whether or not it was for something
            else doesn’t really matter so much as the fact that
            Airman Hart tried to get Airman Davis to meet so that
            they could somehow come to terms on this matter.
            Airman Davis said, “No, I don’t have the time to do


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United States v. Hart, 00-0416/AF


            that,” and he then went on though to have the time
            to file a report at the Law Enforcement Desk. Again,
            trying to go to Airman Davis’ credibility. Whether
            or not he intended, that is Airman Davis, intended
            to allow an allotment is not the only thing that
            makes that question relevant.

            With regard to the camcorder, the question was asked,
            yes, “Did he tell you?” “He said it was his.” That
            goes to, again, yes, that goes to Airman Hart’s state
            of mind as to what he was taking on his own.




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