                        UNITED STATES, Appellee

                                    v.

                  Keith B. WASHINGTON, Staff Sergeant
                     U. S. Marine Corps, Appellant

                              No. 05-0650
                       Crim. App. No. 200101011

       United States Court of Appeals for the Armed Forces

                         Argued April 19, 2006

                        Decided August 9, 2006

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


                                  Counsel


For Appellant: Lieutenant Richard H. McWilliams, JAGC, USNR
(argued); Captain James Valentine, USMC, and Lieutenant
Commander Jason S. Grover, JAGC, USN (on brief).


For Appellee: Lieutenant Mark H. Herrington, JAGC, USNR
(argued); Commander Charles N. Purnell, JAGC, USN (on brief);
Lieutenant Kathleen A. Helmann, JAGC, USNR.



Military Judge:    A. W. Keller



          THIS OPINION IS SUBJECT TO REVISION BEFORE PUBLICATION.
United States v. Washington, No. 05-0650/MC


    Judge BAKER delivered the opinion of the Court.

    Appellant was a Marine Corps staff sergeant stationed at the

Marine Corps Air Station in Cherry Point, North Carolina.

Contrary to his pleas, after a contested general court-martial

before members, he was convicted of carnal knowledge and

indecent acts with a child, in violation of Articles 120 and

134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920,

934 (2000).   He was sentenced to a bad-conduct discharge,

confinement for nine years and reduction to pay grade E-1.     The

convening authority approved the adjudged sentence.   The United

States Navy-Marine Corps Court of Criminal Appeals affirmed.

United States v. Washington, 61 M.J. 574, 578 (N-M. Ct. Crim.

App. 2005).   Upon Appellant’s petition, we granted review of the

following two issues:

  I.    WHETHER LEGALLY SUFFICIENT EVIDENCE WAS PRESENTED TO
        PROVE THE OFFENSE OF CARNAL KNOWLEDGE.

  II.   WHETHER THE LOWER COURT ERRED WHEN IT RULED THAT A
        MILITARY JUDGE MAY ADMINISTER AN OATH OF TRUTHFUL
        TESTIMONY TO A CHILD AFTER THE TESTIMONY IS COMPLETE.

On Issue I, viewing the evidence in the light most favorable to

the prosecution, we conclude that the evidence was legally

sufficient.   On Issue II, we conclude that in the context of

this case, Appellant was not materially prejudiced by the

failure to administer the oath in light of the corrective action




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United States v. Washington, No. 05-0650/MC


taken.    As a result, we affirm the decision of the United States

Navy-Marine Corps Court of Criminal Appeals.

                              BACKGROUND

        At the time of the alleged offenses, Appellant and his

wife, Krystal, lived in on-base housing along with their

triplets, age five, and their daughter, C.B., age eight.     At

Appellant’s court-martial, Krystal testified that around 9:30

a.m. on June 27, 1998, she left the house to buy breakfast for

the family at Hardee’s.    She returned home a little before 10:00

a.m., and soon afterwards, made arrangements to drive her mother

to Georgia.    Krystal intended to drive and spend the night in

Georgia with her mother and a friend, leave the children with

Appellant, and return home the following day.    She discussed

child care arrangements with Appellant, and told C.B. to take a

bath.    When Krystal and her mother left the house at about 10:30

a.m., Appellant was in bed wearing basketball shorts.

        Krystal testified that not long after leaving the house,

she realized she forgot to pack a particular dress.    She

returned home and tried to open the screen door.    The screen

door was generally left unlocked, but upon her return, she found

it locked.    She tapped on the window of the triplets’ room, and

all three came to the door and opened it.    Krystal asked where

C.B. was, and the children told her she was “in the room with




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United States v. Washington, No. 05-0650/MC


daddy.”   Krystal walked into her bedroom to get the dress and

saw Appellant and C.B. in bed together.

     Krystal testified that she became angry because she

believed C.B. had ignored her demand to take a bath.    She asked

C.B., “[d]idn’t I tell you to take a bath?”   When C.B. tried to

get out of bed, Appellant grabbed her and said, “[l]eave the

girl alone.   She’s just laying here.”   Krystal and Appellant

began to argue, and when Appellant continued to not let C.B. out

of bed, Krystal pulled hard on the bed covers.   Before Appellant

could pull the covers back up, Krystal saw that he and C.B. were

“spooned into each other.”   C.B.’s underwear and shorts were at

the foot of the bed, and Appellant was totally naked.   Krystal

testified that Appellant had a partial erection in that “about-

to-lose-it stage.”   She attempted to call the police, but

Appellant disconnected the phone and tried to restrain her,

telling her she was not going to “leave the house thinking

that’s what [she had seen].”   Krystal hurriedly ordered all four

children, still in their night clothes and without shoes, into

her car and drove them six to eight hours to Georgia.




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United States v. Washington, No. 05-0650/MC


                             DISCUSSION

A.   Sufficiency of the Evidence

      Appellant first challenges his conviction on the ground

that there was insufficient evidence to prove he committed

carnal knowledge on June 27, 1998.     He argues the offense of

carnal knowledge requires proof of sexual penetration, and the

Government failed to introduce legally sufficient evidence

showing he engaged in an act of sexual intercourse with C.B.

      An Article 120(b), UCMJ, violation for carnal knowledge

requires:    (1) that the accused commit an act of sexual

intercourse; (2) with a person who is not the accused’s spouse;

and (3) who is under sixteen years old.    “Penetration, however

slight, is sufficient to complete” the offense.    Article 120

(c), UCMJ.

      When determining whether the evidence was legally

sufficient to show an act of sexual intercourse on June 27, 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)); United States v. Turner, 25 M.J. 324, 324 (C.M.A.

1987).




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United States v. Washington, No. 05-0650/MC


     At the court-martial, the specification for carnal

knowledge alleged that Appellant, did “on divers occasions,

between on or about 15 April 1998 and 27 June 1998, commit the

offense of carnal knowledge with [C.B.], a child under the age

of 12.”   In light of Krystal’s testimony about discovering her

husband naked in bed with C.B. on June 27, the Government’s case

focused on the events of that day.     The members found Appellant

guilty of carnal knowledge on June 27, but they did not find he

committed the offense on prior divers occasions.    Appellant’s

central argument is that although C.B. testified about acts of

vaginal penetration prior to June 27, the members found him not

guilty of those acts, and therefore those same acts could not be

considered by either the members or the Navy-Marine Corps Court

of Criminal Appeals when determining whether he committed carnal

knowledge on June 27.   He argues that without the prior acts

evidence, there is insufficient evidence showing vaginal

penetration occurred on June 27.

     For the reasons stated below, we disagree.     First, the

Government offered some evidence showing vaginal penetration

occurred on June 27.    Second, in light of the different

standards necessary to convict, as opposed to admit, other acts

evidence, the members and the lower court might appropriately

consider evidence of those prior divers acts for which Appellant

was found not guilty.


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United States v. Washington, No. 05-0650/MC


                  Evidence Referring to Events on June 27

     On the first day of her testimony, C.B. nodded

affirmatively when the Government asked whether Appellant had

“touched [her] private parts with his private part more than

once.”    She testified, without reference to any specific day,

that Appellant put his private part “inside [her] private part,”

and that “white stuff” came out of his private part on her

belly.    She also testified about the specific events on June 27,

and stated that after her mother left for Georgia, she sat on

her parents’ bed to watch television.      After Appellant came in,

he took off their shorts, they got under the covers and “he

started rubbing on [her].”

     The following day, the Government recalled C.B.        She

reiterated her earlier testimony and also stated that the

penetration did not hurt because it was partial.      Trial counsel

elicited the following testimony:

     Q.    But he did put his private part in your private
           part, right?

     A.     Yes.

     Q.     Why didn’t it hurt?

     A.     I don’t know.

     Q.     You don’t know?    Did it go all the way inside
            you?

     A.     No.

     Q.     Did it go inside you though?


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United States v. Washington, No. 05-0650/MC


      A.   Yes.

           . . . .

      Q.   Do you remember we talked about the one incident
           that your mother walked in on you, right?

      A.   Yes.

           . . . .

      Q.   Did your daddy touch you times before that,
           right?

      A.   Yes.

      Q.   Did he also put his private part inside your
           private part before that?

      A.   Yes.

Emphasis added.   It is clear from this exchange that trial

counsel asked C.B. questions pertaining specifically to vaginal

penetration.   Immediately on the heel of those questions, trial

counsel asked whether Appellant “also put his private part

inside [her] private part before” June 27.    (emphasis added).

For sure, this testimony is subject to more than one

interpretation; however, viewing the testimony in the light most

favorable to the Government, a reasonable trier of fact could

infer that the word “also” was inclusive, and meant that acts of

penetration occurred not only before June 27, but also on June

27.




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United States v. Washington, No. 05-0650/MC


                        Evidence of Prior Acts

     Appellant also argues that because the members found him

not guilty of carnal knowledge on divers occasions before June

27, the Court of Criminal Appeals erred in relying on evidence

regarding those divers acts in upholding the factual and legal

sufficiency of the charge to carnal knowledge on June 27.1

     Appellant’s argument that those other acts cannot be

considered fails for two related reasons.    First, the

admissibility of other acts evidence is governed by the Military

Rules of Evidence (M.R.E.), and not by the members’ verdict.

Second, Appellant is arguing, in essence, that a finding of not

guilty amounts to a finding of fact –- in this case a finding

that C.B.’s other acts testimony was false.      However, a finding

of not guilty is not a finding of fact, but a determination that

the government has not proved all the elements of the charged

offense beyond a reasonable doubt.    United States v. Watts, 519

U.S. 148, 155 (1997); see also Dowling v. United States, 493

U.S. 342, 348 (1990).


1
  In addressing legal and factual sufficiency, the Criminal Court
of Appeals opinion states inter alia:

     A careful reading of the record of trial discloses that
     sufficient evidence of each and every element of both
     offenses was presented to the members through testimony and
     other evidence adduced at trial. C.B. testified that the
     appellant had touched her “private parts” on more than one
     occasion prior to, or on the morning of, the alleged
     incident. Washington, 61 M.J. at 577.

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United States v. Washington, No. 05-0650/MC

     Moreover, with respect to other acts evidence involving

child molestation and sexual assault, M.R.E. 413 and M.R.E. 414

are “intended to provide for more liberal admissibility of

character evidence in criminal cases.”   Manual for Courts-

Martial, United States, Analysis of the Military Rules of

Evidence app. 22 at A22-36 to A22-37 (2005 ed.) [hereinafter

Drafters’ Analysis].   Specifically, M.R.E. 414(a) provides that

“[i]n a court-martial in which the accused is charged with an

offense of child molestation, evidence of the accused’s

commission of one or more offenses of child molestation is

admissible and may be considered for its bearing on any matter

to which it is relevant.”

     Before a court may submit evidence of prior charged or

uncharged acts to a jury, it must examine “the evidence in the

case and decide[] whether the jury could reasonably find the

conditional fact . . . by a preponderance of the evidence.”

United States v. Huddleston, 485 U.S. 681, 690 (1988); Dowling,

493 U.S. at 348-50.    This Court in United States v. Reynolds, 29

M.J. 105, 109 (C.M.A. 1989), while not citing Huddleston, set

forth a “three-prong test [] consistent with Huddleston” to

govern the admissibility of other acts evidence.    United States

v. McDonald, 59 M.J. 426, 429 (C.A.A.F. 2004).     Although

Reynolds dealt with evidence of uncharged misconduct, its three-




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United States v. Washington, No. 05-0650/MC

prong test can apply to evidence of charged misconduct.2    The

test contains the following elements:

          1.   Does the evidence reasonably support a
          finding by the court members that the appellant
          committed prior crimes, wrongs or acts?

          2.   What “fact . . . of consequence” is made
          “more” or “less probable” by the existence of
          this evidence?

          3.   Is the “probative value . . . substantially
          outweighed by the danger of unfair prejudice”?

Reynolds, 29 M.J. at 109 (citations omitted).

     Applying the first prong of the Reynolds analysis to the

facts of this case, we conclude that a jury could reasonably

find that the prior acts occurred.   C.B. testified consistently

for over two days that her father had on multiple occasions

before June 27 “put his private part inside [her] private part.”

What distinguishes these other acts from the acts committed on

June 27 is the quantum of evidence offered to prove them, not

the reliability of C.B.’s testimony.    The focus of the

Government’s case was on the acts occurring on June 27, not the

other acts, for it was on June 27 that C.B.’s mother discovered


2
  In Huddleston, 485 U.S. at 689, the Supreme Court concluded
that evidence of uncharged acts is admissible if the jury can
reasonably conclude that the other acts occurred and that the
defendant was the actor. The Supreme Court has applied the
Huddleston analysis to evidence of prior charged acts. See
Dowling, 493 U.S. at 348-50; Watts, 519 U.S. at 156 (quoting
Dowling, 493 U.S. at 349). Because Reynolds is consistent with
Huddleston, the Reynolds test also applies to prior charged
acts.

                               11
United States v. Washington, No. 05-0650/MC

Appellant in bed with C.B. and her testimony could support

C.B.’s.

     As for the second Reynolds prong, evidence is relevant

under M.R.E. 401 when it has “any tendency to make the existence

of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without

the evidence.”   M.R.E. 401; United States v. Berry, 61 M.J. 91,

95 (C.A.A.F. 2005).   In this case, evidence that Appellant may

have engaged in the near identical acts with his daughter in the

months prior to June 27 is relevant to the determination of

whether Appellant engaged in similar conduct on June 27.

     Applying the M.R.E. 403 balancing test for the third

Reynolds prong, the probative value of this evidence was not

substantially outweighed by the danger of unfair prejudice.    It

was integral to the charged conduct, integral to C.B.’s

testimony regarding the events of June 27, and consistent in

detail and tenor with the evidence regarding June 27.

     Because the members could reasonably find by a

preponderance of the evidence that the other prior acts

occurred, and the other acts evidence is logically and legally

relevant, the members and lower court could properly consider

evidence of carnal knowledge committed before June 27.

     Viewing the evidence in the light most favorable to the

prosecution, including C.B.’s testimony, the evidence that


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United States v. Washington, No. 05-0650/MC

Appellant was found naked in bed “spooning” C.B. with a partial

erection, and the evidence of carnal knowledge committed before

June 27, we conclude that a rational trier of fact could have

found beyond a reasonable doubt that carnal knowledge occurred

on June 27.

B.   Administration of the Oath After Testimony

      We now turn to Appellant’s second claim that his conviction

and sentence should be set aside because the witness oath was

administered to C.B. after her first day of testimony was

complete.

      The first day C.B. was called to testify, trial counsel

asked her a series of questions about whether she knew the

meaning of telling the truth, and the difference between telling

the truth and telling a lie.     The following exchange took place:

      Q.    Do you know what the truth is?

      A.    Yes

      Q.    What is the truth?

      A.    Telling what really happened.

      Q.    If I told you –- what is a lie?   Do you know what a
            lie is? Tell me what a lie is?

      A.    Not telling the truth.

      Q.    Not telling the truth. So if I told you the sky was
            purple right now, what would that be?
      A.    A lie.

      Q.    That would be a lie, right?



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United States v. Washington, No. 05-0650/MC

At this point, the military judge interrupted the exchange to

ask trial counsel to stand a little further from C.B. so that

she would speak in a louder voice.     After the interruption,

trial counsel commenced with C.B.’s direct examination without

administering the witness oath.    At the end of the direct

examination, consisting of nine pages in the record, trial

counsel asked C.B. the following:

     Q.   Why did you say what you said today?

     A.   Telling the truth.

     Q.   You swore that everything you said today was the
          truth, correct?

     A.   Yes.

     At this point, trial counsel told the military judge there

was nothing further, but also stated that “[t]he only thing,

sir, if you require me to swear her in, I will.    I think we have

pretty much covered it, sir.   I didn’t officially do it.”    Trial

counsel then engaged in the following exchange with C.B.:

     Q.   [C.B.], your testimony today, was it the truth?

     A.   Yes.

     Q.   Was it the whole truth?

     A.   Yes.

     A.   Was it nothing but the truth?

     Q.   Yes.

     A.   So help you God?



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United States v. Washington, No. 05-0650/MC

     Q.      Yes.

     The following day C.B. was recalled to testify.            On

redirect, trial counsel asked whether C.B. remembered that it

was important to tell the truth.         C.B. stated that she

remembered and testified that she had told the truth the

previous day.       Defense counsel did not object to the failure to

formally swear in C.B. at the beginning of her first day of

testimony, at the close of her testimony, or at the outset of

her testimony on the second day of trial.

     M.R.E. 603 provides:       “Before testifying, every witness

shall be required to declare that the witness will testify

truthfully, by oath or affirmation administered in a form

calculated to awaken the witness’s conscience and impress the

witness’s mind with the duty to do so.”        M.R.E. 603 “requires

that a witness swear or affirm that he will tell the truth,” but

it “establishes no specific colloquy to be used in carrying out

this requirement.      Any process that is sufficient to ‘awaken the

witness’s conscience . . .’ is satisfactory.”        United States v.

Allen, 13 M.J. 597, 599 (A.F.C.M.R. 1982) (quoting Stephen A.

Saltzburg, Lee D. Schinasi & David A. Schlueter, Military Rules

of Evidence Manual 276 (1981)).       As stated in the Drafters’

Analysis, M.R.E. 603 is taken without change from the Fed. R.

Evid. 603.    Drafters’ Analysis app. 22 at A22-45.      The Notes of

Advisory Committee on Rules for Fed. R. Evid. 603, states that


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United States v. Washington, No. 05-0650/MC

“[t]he rule is designed to afford the flexibility required in

dealing with . . . children” and that “[a]ffirmation is simply a

solemn undertaking to tell the truth . . . .”    As with the Fed.

R. Evid. 603, M.R.E. 603 requires no special verbal formula, but

instead requires that the oath be meaningful to the witness,

including a child witness, and impress upon the witness the duty

to tell the truth.     See Allen, 13 M.J. at 599-601; see Spigarolo

v. Meachum, 934 F.2d 19, 24 (2d Cir. 1991) (“When children

testify, the trial court may fashion an oath or affirmation that

is meaningful to the witness.”).

     Because Appellant did not object to the failure of trial

counsel to place C.B. under oath, Appellant waived the issue

absent plain error.3    United States v. Odom, 736 F.2d 104, 112

(4th Cir. 1984); United States v. Pluta, 176 F.3d 43, 51 (2d

Cir. 1999); see United States v. Powell, 49 M.J. 460, 465

(C.A.A.F. 1998) (in absence of objection, plain error analysis

applies).   In this context, the rationale for applying waiver is

twofold:    “First, the defect or failure could have been

corrected if a timely objection had been made; second, in the

absence of a waiver rule counsel might deliberately avoid


3
  We agree with the conclusion of the Court of Criminal Appeals
that whether Appellant’s absence of objection is considered
waiver or forfeiture, the appropriate standard of review is one
of plain error. Washington, 61 M.J. at 576 n.1. Therefore, we
need not and do not address the distinction between forfeiture
and waiver in this case.

                                  16
United States v. Washington, No. 05-0650/MC

objecting to a witness being unsworn in order to have a ground

of appeal.”   Odum, 736 F.2d at 115.   Under our plain error

analysis, Appellant must show that there was error, the error

was plain or obvious, and that the error materially prejudiced

his substantial rights.    Powell, 49 M.J. at 463-65.

     There is no doubt that the failure to administer the oath

before C.B.’s testimony was error, and that the error was

obvious.   The plain text of M.R.E. 603 required C.B., by oath or

affirmation, to declare that she would testify truthfully

“before testifying.”   The initial colloquy between C.B. and

trial counsel fell short of this requirement.   However,

Appellant’s claim fails because he cannot show he was materially

prejudiced by the error.

     Trial counsel asked if C.B. knew the difference between the

truth and a lie, and C.B. indicated that she understood.     At the

end of her testimony, C.B. stated that she had told the “whole

truth” and “nothing but the truth.”    She then swore that

everything she said had been the truth.   When C.B. was recalled,

she also stated that she only told the truth the previous day.

Although the colloquy between trial counsel and C.B. was not a

formal oath or affirmation, C.B. demonstrated she understood her

duty to tell the truth.    In short, consistent with the purpose

of M.R.E. 603, but not its temporal requirement, the record of

trial reveals that C.B. was alert to the necessity of telling


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United States v. Washington, No. 05-0650/MC

the truth both at the beginning of her testimony and at the

outset of the second day of her testimony.

     Appellant counters that while C.B. may have been aware of

her obligation to tell the truth, she was not aware of the

consequences of failing to do so, a requirement Appellant

derives from the language of M.R.E. 603 regarding “duty” and the

general knowledge possessed by most adults that those who lie on

the witness stand may be subject to perjury.   In addressing this

argument, we need not reach beyond the confines of this case.

The law is clear, both in the text of M.R.E. 603 and its

analysis, and in federal circuit case law.    A particular formula

is not required in administering an oath or affirmation,

although adherence to the benchbook formula will minimize

dispute.   This is particularly true in the case of children,

where oaths and affirmations may be specially tailored to

impress on the particular child the importance of telling the

truth.   This can be accomplished, as it has been accomplished

for many years, without imparting to the child the perils of

perjury.

     For these reasons, Appellant has not shown that the error

prejudiced his substantial rights.

                                DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.


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