                          UNITED STATES, Appellee

                                         v.

            William E. DATZ, Gunners Mate Second Class
                    U.S. Coast Guard, Appellant


                                   No. 03-0638


                         Crim. App. No. 001-69-01

    United States Court of Appeals for the Armed Forces

                          Argued October 12, 2004

                          Decided April 25, 2005

BAKER, J., delivered the opinion of the Court, in which
GIERKE, C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ.,
joined.

                                      Counsel

For Appellant:        Lieutenant Commander Nancy J. Truax
   (argued).

For Appellee:   Commander Duane R. Smith (argued);
   Lieutenant Commander John S. Luce (on brief).

Military Judge:        R. W. Bruce


     THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Datz, No. 03-0638/CG


    Judge BAKER delivered the opinion of the Court.

    Appellant was tried by a general court-martial composed

of officer and enlisted members at Alameda, California.

Contrary to his pleas, he was convicted of assaulting a

petty officer, treating the same petty officer with

contempt, sexually harassing a female member of his crew,

unlawfully entering the civilian quarters of a member of

his crew, three specifications of dereliction of duty, and

rape in violation of Articles 91, 92, 120, and 134, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. §§ 891, 892,

920, and 934 (2000), respectively.      The adjudged and

approved sentence provided for confinement for three

months, and reduction from grade E-5 to grade E-3.

Appellant did not receive a punitive discharge.

       Appellant’s conviction and sentence were reviewed by

the Acting Judge Advocate General of the Coast Guard

pursuant to Article 69, UCMJ, 10 U.S.C. § 869 (2000), who

directed the United States Coast Guard Court of Criminal

Appeals to review the record.       The Court of Criminal

Appeals considered fourteen assignments of error from

Appellant.   The findings and sentence were determined to be

correct in law and were affirmed.      United States

v. Datz, 59 M.J 510 (C.G. Ct. Crim. App. 2003).

     We granted review of the following three issues:


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United States v. Datz, No. 03-0638/CG


     I.    WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO
           SUSTAIN A CHARGE OF RAPE WHERE THE VICTIM WAS
           AWAKE AND COHERENT YET TOTALLY PASSIVE, FAILED TO
           REASONABLY MANIFEST LACK OF CONSENT, AND THE ONLY
           EVIDENCE OF “FORCE” WAS MOVING HER LEG TO ACHIEVE
           PENETRATION.

     II.   WHETHER THE MILITARY JUDGE ERRED BY ADMITTING
           TESTIMONY OF SUPPOSEDLY INCRIMINATING NONVERBAL
           GESTURES, WHERE THE INTERROGATOR COULDN’T
           REMEMBER WHAT QUESTIONS HE ASKED TO ELICIT THE
           GESTURES.

     III. WHETHER THE MILITARY JUDGE ERRED IN SUPPRESSING
          EVIDENCE OF THE RAPE VICTIM’S MOTIVE TO
          MISREPRESENT.

Because we reverse this case on the basis of Issue II, we

need not address Issues I and III.

     The military judge erred when he admitted an

investigator’s testimony that Appellant manifested an

adoptive admission, through an affirmative head nod, that

the victim did not consent to intercourse.      This testimony

was predicated on the investigator’s recollection of the

following predicate question:       “[I]t was something to the

effect . . . and it would have been, ‘She didn't in fact

agree to have sex with you, did she?’ or something to that

effect.”   Given the ambiguity and the compound nature of

the question asked, the Government did not meet its

threshold burden of demonstrating that Appellant understood

and unequivocally acquiesced in the statement at issue as

presented by the investigator.      Such threshold



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United States v. Datz, No. 03-0638/CG


determinations are not factual questions for the members to

consider.    Rather, they are foundational requirements to be

determined by the military judge before adoptive admissions

are presented to the members.       Because this testimony

effectively amounted to an admission by Appellant to the

only contested element of the offense -- consent -- this

was prejudicial error.

                            Background

        Appellant was charged with raping Petty Officer (PO) H

at her townhouse in the early morning hours of June 27,

1999.    At trial, Appellant conceded that intercourse had

occurred, but argued that the intercourse was consensual.

Nonetheless, the members convicted him of rape.

        The Court of Criminal Appeals concluded that testimony

that Appellant had moved PO H’s leg in order to have

intercourse provided a legally sufficient basis for members

to have found the element of force.      With respect to the

element of consent, trial counsel presented evidence that

when Appellant showed up in PO H’s bedroom in the early

morning hours, she told him to leave and that she answered

his crude questions about having sex by saying “no.”         The

Government also presented evidence that PO H turned away

from Appellant hoping he would fall asleep, and that when

he continued with the act, she cried.


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United States v. Datz, No. 03-0638/CG


     At a session during trial pursuant to Article 39(a)

UCMJ, 10 U.S.C. § 839 (2000), trial counsel proffered

testimony from Special Agent (SA) Van Arsdale that during

his interrogation Appellant had nodded in affirmative

response to, and thereby indicated that he agreed with,

four questions.   These questions touched on:   (1) whether

PO H had left her door unlocked for Appellant or for

someone else, (2) whether at a previous gathering where

others were present, she had singled him out and invited

him to her room, (3) whether it was true that PO H’s

invitation, rather than to him individually, was to a group

of people, and (4) whether or not PO H agreed to have

intercourse with him.   The following colloquy took place

between the trial counsel and SA Van Arsdale:

     Q.   Do you recall how you confronted him with that?
     A.   In the same manner. This whole line of
          questioning was done in the same manner. “Isn’t
          it true the door wasn’t meant to be unlocked for
          you but somebody else?” Something along those
          lines.

     . . . .

     Q.   Regarding [H] singling out and inviting him to
          her house and to her room. How would you have
          confronted the accused with that?
     A.   It would have been along the same lines. Either
          “Isn’t it true?” or “Seaman [H] didn’t in fact
          invite you at all, did she?”
     Q.   So posed as a question again?
     A.   Posed as a question.

     Just before that exchange, the military judge had


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United States v. Datz, No. 03-0638/CG



commented on SA Van Arsdale’s questioning of the accused:

     Military Judge: [T]he way you phrased the question,
          it doesn’t seem like it would call for a yes or
          no answer.
     [Trial Counsel:] Special Agent Van Arsdale, do you
          recall how you confronted the accused with Petty
          Officer [H]’s invitation being proposed to a
          group of people?
     [SA Van Arsdale:] Yes.
     Q.   Can you explain that?
     A.   Would have posed the question something like,
          “Isn’t it true that the invitation wasn’t
          directed toward you, but in fact it was directed
          towards a large group of people?” And then his
          response was an up-and-down head bob.

     . . . .

     Q.   Special Agent Van Arsdale, I’m going to ask you
          again if you confronted the accused as to whether
          or not Petty Officer [H] had agreed to have sex
          with him. And did you?
     A.   Yes.
     Q.   And do you recall if he responded?

     . . . .

     A.   He responded affirmatively to the question I
          posed.

     . . . .

     A.   Again, it was something to the effect -– this
          whole line of questioning was around the same
          time, and it would have been, “She didn’t in fact
          agree to have sex with you, did she?” or
          something to that effect.

     Trial defense counsel initially objected to the

admission of this testimony on the grounds that it was

irrelevant and that its probative value was outweighed by

its prejudicial effect.   Counsel then went on to question


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United States v. Datz, No. 03-0638/CG


whether the testimony proffered demonstrated that Appellant

had manifested his adoption of or belief in the statements:

     [T]here’s a real question -– I mean, the question’s
     posed. What does [the nodding] mean? Is he nodding
     affirmatively to the question, or is he just
     acknowledging the question, or is he just ticked off
     that these questions are coming at him one after
     another . . . ?

     Later, during cross-examination, defense counsel asked

SA Van Arsdale about his questioning of Appellant and

Appellant’s subsequent responses:

     Q.   You asked the question, he nods his head, you
          don’t follow up with the question, “Is that a
          yes?”
     A.   That’s correct.
     Q.   So with all these questions, same exact scenario?
          You ask the question, boom, you move on to the
          next one, right?
     A.   Pretty much, yes.

     Over defense counsel’s objections, the military judge

admitted SA Van Arsdale’s testimony stating:

          Well, it seems to me that this is a question for
     the members as to the weight that they’re going to
     give to Van Arsdale’s testimony.

          . . . .

          [I]n terms of [Military Rule of Evidence
     (M.R.E.)] 403, I think there is certainly enough
     evidence there for the members to conclude that the
     accused made the admissions that Van Arsdale’s
     testifying to. And if they do, then that has strong
     probative value on those issues.

          On the other hand, the defense may convince them
     that the testimony of Van Arsdale on those issues has
     little or no value, and if they give it little or no



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United States v. Datz, No. 03-0638/CG


      value, then, of course, there’s no prejudice to the
      defense.

Notwithstanding the objection based on M.R.E. 403, the

defense counsel did not expressly object that the head nods

were inadmissible adoptive admissions under M.R.E.

801(d)(2).    But as noted above, he did question whether it

could really be determined what Appellant’s head nodding

meant.   The special agents had not audiotaped or videotaped

Appellant’s interview.        Nor had Appellant been asked to

prepare a written statement or sign a written statement

prepared by the agents.1      The military judge did not enter


1
  There are two documents describing Appellant’s interrogation. The
first document consists of four pages of handwritten notes taken during
the interview of Appellant by SA Lanigan as SA Van Arsdale conducted
the interview. These notes, which do not include the questions at
issue and do not record any corresponding nonverbal admissions by
Appellant, are not part of the record of trial. The second document, a
three-page typed interview report, is dated July 8, 1999. This
document reflects in paragraphs e through h the following nonverbal
admissions by Appellant:

      Leaving the Door Open

      e.    When confronted that [PO H’s] comment about leaving her
      door unlocked was directed at someone else and not to Datz, he
      nodded affirmatively, but did not verbally respond.

      Invitation into Home

      f.    When confronted that [PO H’s] invitation to her house that
      evening was made to a group of people, he acknowledged that he
      was standing near a group when the invitation was made and that
      the comment was not directed towards him.

      Invitation to Group or Appellant

      g.    When confronted that [PO H] did not single him out and
      invite him to her house or to her room that evening, he nodded
      affirmatively, but did not verbally respond.

      Consent to Sex


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United States v. Datz, No. 03-0638/CG


predicate findings about the head nods as adoptive

admissions.

      On appeal, Appellant contends the military judge erred

by admitting SA Van Arsdale’s testimony concerning

Appellant’s nonverbal head nods.        Of the four adoptive

admissions at issue, three addressed specific

circumstantial aspects of the offense.         The fourth

admission went directly to one of the elements of rape,

namely, whether the victim consented to the sexual

intercourse.    Appellant argues that because the head nods

were admitted as adoptive admissions under M.R.E.

801(d)(2), before the evidence could be presented before

the members, the military judge was required to make a

predicate finding that Appellant understood the content of

the statements, and unequivocally acknowledged the

statements in adopting them as his own.          Appellant further

argues that he did not adopt the statements that SA Van

Arsdale says he did.      Appellant contends that some of the



      h.    When confronted that [PO H] did not agree to have sex with
      him, he nodded affirmatively, but did not respond verbally. When
      asked whether [PO H] told him to leave, he denied she made that
      comment.

Although these documents were referenced at trial and on appeal, they
were not admitted into evidence at trial and the military judge stated
on the record, “I haven’t specifically looked at the notes, or anything
like that.” Therefore, our review of the military judge’s evidentiary
rulings on adoptive admissions is based on the evidence before the
military judge at trial.


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United States v. Datz, No. 03-0638/CG


questions posed to him during his interrogation were

ambiguous, making it impossible to determine what it was

that he was adopting, if anything, including his response

to the critical question of consent.    Finally, Appellant

asserts that, given the uncertainty regarding these alleged

adoptive admissions, their prejudicial effect outweighed

any probative value.   On the issue of waiver or forfeiture,

Appellant argues that his objection was made known at trial

and the judge’s error should be reviewed for an abuse of

discretion rather than for plain error.

     According to the Government, military courts have

recognized and admitted head nods as affirmative responses.

Further, the Government argues that the military judge

conducted a proper balancing test under M.R.E. 403 when he

determined that SA Van Arsdale’s testimony regarding

Appellant’s affirmative head nods was admissible.

Finally, the Government argues that Appellant failed to

object to this evidence at trial on the ground of M.R.E.

801(d)(2)(B).   On this basis, the Government argues, this

Court should test the military judge’s ruling for plain

error.

                          Discussion

     We first address the parties’ arguments regarding

waiver or forfeiture, so as to determine the standard of


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United States v. Datz, No. 03-0638/CG


review we will apply in this case.   Defense counsel,

objecting to SA Van Arsdale’s testimony on the basis of

M.R.E. 401 and 403, stated, “The objection is 401, 403,

whether or not this evidence is relevant and whether or not

any probative value it has is outweighed by the prejudicial

effect.”   Defense counsel did not cite to M.R.E.

801(d)(2)(B).

     However, his argument on the motion addressed the

issue of adoptive admissions generally and specifically

raised concerns about whether Appellant’s nodding adopted

the admissions posed by SA Van Arsdale.   Among other

things, trial defense counsel argued:

          The concerns -– I said this rule does not fall
     under the [admission by] silence rule [see United
     States v. Cook, 48 M.J. 236 (1998)], but the concerns
     that exist as a basis for the rule against admissions
     by silence by the accused apply here in that the rule
     is concerned with questions about the potential
     manufacture of evidence.

           . . . .

     Another question is -– as with the silence rule,
     there’s a question of the ambiguity about what this
     [nodding] means.

           . . . .

     But there’s a real question -– I mean, the question’s
     posed. What does it mean? Is he nodding
     affirmatively to the question, or is he just ticked
     off that these questions are coming at him one after
     another after he’s already told them what occurred?
     So important to consider in that, Your Honor, is the



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United States v. Datz, No. 03-0638/CG


     nature of these questions, the series of questions,
     one after another, after another, after another.

     Under M.R.E. 103, in order to preserve an objection

when “the ruling is one admitting evidence” the objecting

party must make “a timely objection or motion to strike . .

. in the record, stating the specific ground of the

objection, if the specific ground was not apparent from the

context.”   M.R.E. 103(a)(1).   The rule also provides that

“[n]othing in this rule precludes taking notice of plain

errors that materially prejudice substantial rights

although they were not brought to the attention of the

military judge.”   M.R.E. 103(d).

     In the present context, we believe defense counsel met

his burden under M.R.E. 103.    Although defense counsel

cited M.R.E. 401 and 403, he did so squarely in the context

of an argument about Appellant’s nonverbal admissions.

Thus, the specific ground for objection was known to the

military judge.    A party is not necessarily required to

refer to a specific rule by citation.   A party is required

to provide sufficient argument to make known to the

military judge the basis of his objection and, where

necessary to support an informed ruling, the theory behind

the objection.    United States v. Banker, 60 M.J. 216

(C.A.A.F. 2004); United States v. Brandell, 35 M.J. 369, 372



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United States v. Datz, No. 03-0638/CG


(C.M.A. 1992)(holding that “[a] defense counsel has the

duty to identify the ‘specific grounds’ upon which an

objection to evidence is based,” but that this duty is met

when “all parties at trial fully appreciate the substance

of the defense objection and the military judge has full

opportunity to consider it”).

     But if Appellant preserved an objection based upon

M.R.E. 801(d)(2)(B), the additional question framed by the

Government is whether Appellant was also required to raise

each argument in support of his objection at the time of

trial or forfeit the opportunity to do so on appeal, absent

a showing of plain error.   Specifically, the Government

argues that Appellant did not object on the ground that the

questions posed to Appellant were ambiguous, but rather

only because the questions were repetitive and it was not

clear whether Appellant was adopting the admissions.

     We disagree with this argument.      On its face, M.R.E.

103 does not require the moving party to present every

argument in support of an objection, but does require

argument sufficient to make the military judge aware of the

specific ground for objection, “if the specific ground was

not apparent from the context.”      This is not a case where

counsel has shouted “hearsay,” and only later has come to a

conclusion as to the basis for that objection.     Here


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United States v. Datz, No. 03-0638/CG


counsel’s objection to the adoptive admissions was “brought

to the attention” of the military judge.

     To require counsel for either side to identify all

available arguments in support of his or her objection is

unnecessary in a context where the military judge is

presumed to know the law and follow it.    In the heat of

trial, where counsel face numerous tactical decisions and

operate under time pressure, we do not require such

elaboration to preserve error on appeal.

     We turn now to the substantive foundational

requirements for adoptive admissions, as well as a military

judge’s responsibilities in admitting adoptive admissions.

     “A military judge’s ruling on admissibility of

evidence is reviewed for abuse of discretion.”   United

States v. Johnson, 46 M.J. 8, 10 (C.A.A.F. 1997).     In order

to be overturned on appeal, the judge’s ruling must be

“‘arbitrary, fanciful, clearly unreasonable’ or ‘clearly

erroneous,’” United States v. Taylor, 53 M.J. 195, 199

(C.A.A.F. 2000)(quoting United States v. Travers, 25 M.J.

61, 62 (C.M.A. 1987)), or “influenced by an erroneous view

of the law,” United States v. Sullivan, 42 M.J. 360, 363

(C.A.A.F. 1995); United States v. Owens, 51 M.J. 204, 209

(C.A.A.F. 1999).




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United States v. Datz, No. 03-0638/CG


                      Substantive Foundation

      Under Federal Rule of Evidence 801(d)(2)(B) and M.R.E.

801(d)(2)(B), a statement is excepted from the general

hearsay rule when it is one that has been offered against a

party who has manifested an adoption or belief in its

truth.   An adoptive admission can be accomplished through

nonverbal means, such as a hand or head motion.            The text

of the rule does not explicitly incorporate body gestures,

but neither does it preclude such admissions.2

      When a statement is offered as an adoptive admission,

the proponent must present sufficient proof to support a

finding that the party against whom the statement is

offered heard, understood, and acquiesced in the statement.

United States v. Robinson, 275 F.3d 371, 383 (4th Cir.

2001); United States v. Beckham, 968 F.2d 47, 51-52 (D.C.

Cir. 1992); Skiskowski v. United States, 158 F.2d 177, 181-

82 (D.C. Cir. 1946); United States v. Joshi, 896 F.2d 1303,

1311 (11th Cir. 1990); United States v. Sears, 663 F.2d

896, 904 (9th Cir. 1981); United States v. Rodriguez-

Cabrera, 35 F. Supp. 2d 181, 184-85 (D.P.R. 1999).            These


2
  Relying on United States v. Wallace, 34 M.J. 353, 355 (C.M.A. 1992),
the Government argues that this Court has previously upheld the
admission of an appellant’s head nods as an affirmative adoptive
admission. Although Wallace was convicted in part on evidence of
adoptive admissions, this Court’s opinion in Wallace did not address
adoptive admissions and therefore does not inform our review of the
military judge’s ruling in this case.


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United States v. Datz, No. 03-0638/CG


foundational requirements have been applied in military

courts as well.    United States v. Farris, 21 M.J. 702, 705

(A.C.M.R. 1985); United States v. Garrett, 16 M.J. 941,

943-944 (N.M.C.M.R. 1983).

          We cite Garrett favorably because we agree with, and

therefore adopt, that court’s articulation of the

foundational requirements for admitting adoptive

admissions, namely, a showing that (1) the party against

whom it is offered was present during the making of the

statement; (2) he understood its content; and (3) his

actions or words or both unequivocally acknowledged the

statement in adopting it as his own.    Garrett, 16 M.J. at

943-44.

     In Appellant’s case, however, the Government did not

meet its foundational burden of demonstrating that

Appellant understood and acquiesced in the statements

admitted at trial before those statements were admitted

into evidence.    First, a review of the questions identified

during the Article 39(a) session reflects ambiguity as to

the actual questions asked of Appellant.    During that

session for example, SA Van Arsdale could not remember the

exact questions he asked Appellant.    SA Van Arsdale

testified that he “[w]ould have posed the question

something like, ‘Isn't it true that the invitation wasn't


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United States v. Datz, No. 03-0638/CG


directed toward you, but in fact it was directed toward a

large group of people?’ . . . ‘Isn't it true the door

wasn't meant to be unlocked for you but somebody else?

Something along those lines.’”       Similar qualifications were

repeated throughout SA Van Arsdale’s testimony.      At one

point, the military judge interjected, “I think that the

last question was too vague to really mean anything since

we don't know what all the questions were.”

     Second and most importantly, on the critical question

of consent, the questions asked of Appellant, even if they

were recalled exactly as given, were ambiguous because they

contained compound elements.    For example, at the Article

39(a) session, SA Van Arsdale testified that he asked

Appellant:

     A.      Again, it was something to that effect -- this
             whole line of questioning was around the same
             time, and it would have been, “She didn’t in fact
             agree to have sex with you, did she?” or
             something to that effect.”

In response to such a question, it is not clear what an

affirmative nod means.    It could mean that PO H “did not in

fact agree to have sex” with Appellant.       But it could also

mean, she did, i.e., “did she?”      “Yes.”   Alternatively, a

“no” nod might signal agreement with the initial premise of

the question, i.e., communicating “no, she did not agree to

have sex.”    Arguably, it might also reflect something


                                17
United States v. Datz, No. 03-0638/CG


altogether different, like a dismissive gesture borne of

Appellant’s irritation or frustration with the line of

questioning.3    As a result, this testimony does not satisfy

the Government’s threshold burden of showing that Appellant

understood the question and unequivocally adopted the

predicate of the question as his own.

                              Prejudice

      Adoptive admissions in context can present uncertain

and ambiguous applications of the law of evidence, which

are not solely questions of fact for the fact-finder. In

this case, the fourth adoptive admission as presented by SA

Van Arsdale was tantamount to a confession of the crime,

but without the indicia of reliability of a written

confession signed by the accused.

      Here, Appellant’s responses addressed and answered the

main issue in the case:      whether Appellant’s sexual

encounter with PO H was consensual.         On the question of

consent, the Government offered two witnesses, the victim

and SA Van Arsdale.      The Government presented no other

direct evidence of the rape.       In light of this record, we


3
  Although not part of our analysis, which hinges on the evidence
presented to the military judge before admitting the statements, we
note that before the members, the questions that SA Van Arsdale asked
Appellant were presented with comparable ambiguity. On questioning by
defense counsel, SA Van Arsdale agreed that he had asked Appellant:
“[H] never invited you to the house?” and “[H] never agreed to have sex
with [you]?”


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United States v. Datz, No. 03-0638/CG


cannot say with fair assurance that SA Van Arsdale’s

testimony regarding Appellant’s affirmative responses to

his questions did not have substantial influence on the

panel’s decision.   See Kotteakos v. United States, 328 U.S.

750 (1946).

     “‘[T]he defendant's own confession is probably the

most probative and damaging evidence that can be admitted

against him.’”   Arizona v. Fulminante, 499 U.S. 279, 296

(1991)(quoting Bruton v. United States, 391 U.S. 123, 139-

40 (1968)(White, J., dissenting)).    Here that admission

rested upon a law enforcement officer's interpretation of

body language.   Without some additional written, verbal, or

video confirmation, this amounted to a confession by

gesture of a critical element of the offense -- and the

only contested element of the offense.   Gestures and

reactions vary from person to person under the pressure of

interrogation.   As a result, the military judge’s decision

to admit evidence of Appellant’s head nodding without

adequate foundation was prejudicial error.

                           Decision

     The decision of the United States Coast Guard Court of

Criminal Appeals is reversed as to Charge IV (rape) and

specification 1 of Charge VI (unlawful entry).   The

findings of guilty as to those offenses and the sentence


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United States v. Datz, No. 03-0638/CG


are set aside.   The remaining findings of guilty are

affirmed.   The record of trial is returned to the Judge

Advocate General of the Coast Guard.    A rehearing on the

affected findings and the sentence is authorized.




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