UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             TOZZI, CELTNIEKS, and BURTON
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                          v.
                    Sergeant First Class LAWSON L. HO-SHING
                           United States Army, Appellant

                                     ARMY 20150167

                       Headquarters, 1st Cavalry Division
                 Kenneth W. Shahan, Military Judge (arraignment)
                     Wade N. Faulkner, Military Judge (trial)
       Lieutenant Colonel Alison C. Martin, Staff Judge Advocate (pre-trial)
      Lieutenant Colonel Oren H. McKnelly, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Major Andres
Vazquez, Jr., JA; Captain Katherine L. DePaul, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Cormac M. Smith, JA;
Captain Linda Chavez, JA (on brief).


                                        22 May 2017

                                -----------------------------------
                                 MEMORANDUM OPINION
                                -----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

TOZZI, Senior Judge:

       An officer panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of three specifications of assault consumated by battery, and
two specifications of communicating a threat, in violation of Articles 128 and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 928, 934 (2012) [hereinafter UCMJ].
Appellant was found not guilty of one specification of rape, two specifications of
aggravated assault, and one specification of assault consumated by battery, in
violation of Articles 120 and 128, UCMJ. The panel sentenced appellant to a bad-
conduct discharge, twelve months confinement, forfeiture of all pay and allowances,
and reduction in grade to E-1. The convening authority approved only so much of
the sentence as provided for a bad-conduct discharge, twelve months confinement,
and reduction in grade to E-1.
HO-SHING—ARMY 20150167

       This case is before us for review under Article 66, UCMJ. Appellate defense
counsel assigned two errors to this court, one of which warrants discussion but no
relief. Appellant personally raised matters pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), that we find, after due consideration, to be without
merit.

                                  BACKGROUND

       Appellant physically assaulted his wife, SH, on divers occasions between
1 March 2010 and 14 February 2012, at or near Fort Campbell, Kentucky. Appellant
also physically assaulted SH on divers occasions at or near Killeen, Texas, between
15 February 2012 and 25 September 2012. In addition, appellant physically
assaulted SH on or about 25 September 2012 by grabbing her hair and hitting her
head on a bathtub. Appellant was found not guilty of raping SH on or about
28 October 2013 at or near Killeen, Texas.

      In his opening statement at trial, defense counsel discussed divorce as a
motive for SH’s allegations by asserting:

             Divorce, especially when one person doesn’t want a
             divorce gets pretty messy, and unfortunately you’re here
             today with a lot of allegations of what can only be
             described as a messy divorce.

             What happens when somebody wants to get back at
             someone who wants a divorce? You’re going to go after
             what they care about. Something that will definitely get
             their attention. You’re going to go after their relationship
             with their children, you’re going to go after their career,
             that’s where you’re going to get him. Call him a wife
             beater, call him a rapist. And today you’re going to hear
             allegations made by a woman, who after her husband
             decided on divorce, that is when she made the allegations.

Later in the opening statement, defense counsel stated, “She asks him do you still
want a divorce and he says yes, and she says well, you’re going to make me do
something I don’t want to do.”

       During cross-examination, defense counsel elicited testimony from SH that on
29 October 2013 she asked appellant if he still wanted a divorce and he said yes.
When asked whether she spoke with appellant about how much financial support he
would provide, SH replied, “He was talking about the money first, that how much he
will do it, so yeah, we were talking about the money.” On the merits, defense
counsel called Ms. Michelle Watson, who testified that in the summer of 2013 SH
asked her about how much money an ex-wife of a husband charged with sexual

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assault would receive. After government objection, the military judge ruled the
testimony was admissible, stating: “The court finds that the questions that the
defense is asking are probative of a potential motive to fabricate a sexual assault
allegation against [appellant], if she’s interested in how much money someone
whose [sic] made a sexual assault allegation is going to receive.”

      In rebuttal, the government called six witnesses, three of whom testified SH
made statements to them before July 2013 that she was physically abused. These
statements pre-dated the alleged motive to fabricate elicited through the defense
witness, Ms. Watson. These statements also pre-dated SH’s realization on
29 October 2013 that appellant still intended to divorce her.

      Rebuttal witness Ms. Sukyong Martinez testified that SH told her appellant
had “been hitting her in Korea when she was in Korea, and it was---it continues off
and on, and then so I think he broke her bones, you know, somewhere, head, and
even broke this tooth---[.]” Ms. Martinez later testified:

             Oh, he [appellant] told her all the bad words, and he said
             to her I told you if you open the door or something like
             that, then I told you I’m going to hit you, and I don’t
             remember exactly, but I know that she did something that
             he told her not to do it, like open the door or something,
             so he hit her.

       Following Ms. Martinez’s testimony, the military judge gave the following
instruction, in relevant part, to the panel:

             Now, members during that testimony you heard evidence
             that [SH] made statements prior to trial that may be
             consistent with her testimony at this trial. If you believe
             that such consistent statements were made, you may
             consider them for their tendency to refute the charge of
             recent fabrication. You may also consider the prior
             consistent statements as evidence of the truth of the
             matters expressed therein.

       Rebuttal witness KL, SH’s uncle, testified over the objection of defense
counsel, who claimed the motive to fabricate only related to the rape charge. The
military judge overruled that defense objection and KL testified he called SH on
25 September 2012. SH was crying during the telephone call and told him:

             [Appellant] currently is beating me up, so I fled away
             from [him] and I’m in the bathroom locked in. I closed
             the door and I locked it, but he opened it, he came in.
             And he pushed me---pushed me and then he choke me.

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             And he step on my foot hurting me. He used his elbow to
             push my mouth, which chipped my tooth.

After KL asked SH if she wanted him to call the police, SH stated she did not want
her husband to get in trouble. KL then told SH to give him a call back when she
decided what she wanted to do. After KL’s testimony, the military judge gave the
same instruction to the panel as was given after the testimony of Ms. Martinez.

       Rebuttal witness Ms. Sue Kim testified SH worked in her business within the
past two years. When Ms. Kim asked SH why she failed to show up for work one
day, SH replied she went to the emergency room. Ms. Kim testified SH had a red
mark on her neck at that time.

      At the close of the evidence the military judge instructed the panel as follows:

             You have heard evidence that [SH] made statements prior
             to trial that may be inconsistent with—that may be
             consistent with her testimony at trial. If you believe that
             such consistent statements were made, you may consider
             them for their tendency to refute the charge of recent
             fabrication. You may also consider the prior consistent
             statement as evidence of the truth of the matters expressed
             therein.

The military judge also gave the standard spillover instruction to the panel.

                             LAW AND DISCUSSION

       Appellant alleges the military judge abused his discretion by allowing
testimony about SH’s prior consistent statements. The defense argued this
information should not be admitted because they limited their claim of recent
fabrication to the testimony of SH regarding her inquiry about compensation for
victims of sexual assault. However, we find the defense also opened the door to
rebut a claim of recent fabrication through their argument and cross-examination
that SH reported appellant’s conduct because appellant still planned to divorce her.
The record supports the military judge’s finding that the rebuttal testimony
containing SH’s prior consistent statements pre-dated both her inquiry regarding
available compensation for victims of sexual assault and her realization on
29 October 2013 that appellant still intended to divorce her.

       “Hearsay is defined as ‘an out-of-court statement made by a declarant that is
offered in evidence to prove the truth of the matter asserted in that statement.’”
United States v. Adams, 63 M.J. 691, 696 (Army Ct. Crim. App. 2006) (quoting
United States v. McCaskey, 30 M.J. 188, 190-91 (C.M.A. 1990)); see also Military
Rule of Evidence [hereinafter Mil. R. Evid.] 801(c). “Generally, such evidence is

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HO-SHING—ARMY 20150167

inadmissible unless it meets ‘at least one of the specific and time-tested exceptions’
to the prohibition against hearsay, or falls within one of the categories of out-of-
court statements defined as ‘not hearsay.’” Adams, 63 M.J. at 696 (quoting
McCaskey, 30 M.J. at 191, and Mil. R. Evid. 801(d)). *

       Under Mil. R. Evid. 801(d), a prior consistent statement of a witness is not
hearsay if “‘offered to rebut an express or implied charge against the declarant of
recent fabrication or improper influence or motive[.]’” United States v. Allison, 49
M.J. 54, 57 (C.A.A.F. 1998) (quoting Mil. R. Evid. 801(d)(1)(B)). “Under the rule
[prior consistent statements] are substantive evidence.” Tome v. United States, 513
U.S. 150, 161 (1995) (quoting Federal Rule of Evidence 801(d)(1)(B) advisory
committee’s note). Several “inherent safeguards” are contained in Mil. R.
Evid. 801(d)(1)(B), which must be satisfied before prior statements will be admitted.
United States v. Hood, 48 M.J. 928, 933 (Army Ct. Crim. App. 1998) (citing
McCaskey, 30 M.J. at 191). “The rule’s predicate safeguards are that the declarant
must testify at trial and be subject to cross-examination; the statement must be
consistent with the declarant’s in-court testimony; and, the statement must be
offered to actually rebut an attack of recent fabrication or improper motive or
influence.” Id.

        We review a military judge’s decision to admit or exclude evidence of a prior
consistent statement for an abuse of discretion. United States v. Springer, 58 M.J.
164, 167 (C.A.A.F. 2003); United States v. Bell, 72 M.J. 543, 556 (Army Ct. Crim.
App. 2013). Here all the prerequisites of Mil. R. Evid. 801(d)(1)(B) were met. SH
testified and was vigorously cross-examined by the defense. Her prior statements
were consistent with her in-court testimony. The prior consistent statements were
offered to rebut an attack of recent fabrication raised by the defense that SH
inquired about compensation for victims of sexual assault, and that SH discovered
appellant still intended to divorce her. We conclude the military judge properly
found the prior statements predated the alleged recent motive to fabricate, and the
prior statements rebutted the allegation of recent fabrication. See Allison, 49 M.J.
at 57. It is noteworthy that multiple motives to fabricate are contemplated by the
case law of our superior court. “‘Where multiple motives to fabricate or multiple

*
  “According to Mil. R. Evid. 801(d), two categories of out-of-court statements,
prior statements by a witness and admissions by a party-opponent, are ‘not hearsay,’
provided certain conditions are met. One such instance is where ‘[t]he declarant [of
the prior statement] testifies at the trial[,] . . . is subject to cross-examination
concerning the statement, and the statement is . . . consistent with the declarant’s
testimony and is offered to rebut an express or implied charge against the declarant
of recent fabrication or improper influence or motive.’ Mil. R. Evid. 801(d)(1)(B).
Because a statement meeting these conditions is ‘not hearsay,’ it may be admitted to
prove the truth of the matter it asserts.” Adams, 63 M.J. at 696 n.2.


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improper influences are asserted, the statement need not precede all such motives or
inferences, but only the one it is offered to rebut.’” United States v. Coleman, 72
M.J. 184, 188 (C.A.A.F. 2013) (quoting Allison, 49 M.J at 57). The military judge
did not abuse his discretion in allowing the admission of the prior consistent
statements of SH.

       Finally, even if the military judge erred in admitting the statements, we find
no error that materially prejudiced appellant’s substantial rights. See UCMJ
art. 59(a); McCaskey, 30 M.J. at 193. SH’s testimony was corroborated by a voice
recording of appellant wherein he states “I told you I was going to beat your fucking
ass.” Appellant’s explanation of the voice recording (i.e., SH was “setting me up”)
was not persuasive. Photographic evidence of SH’s cracked tooth was admitted into
evidence. In addition, appellant freely admitted to pinning SH against the wall when
“she didn’t want to be touched by me.” Appellant also admitted threatening to “fuck
[SH] up” and “beat the shit out of her.” The evidence against appellant, without
regard to the prior statements, was overwhelming.

                                  CONCLUSION

      On consideration of the entire record, the findings of guilty and the sentence
are AFFIRMED.

      Judge CELTNIEKS and Judge BURTON concur.

                                           FOR
                                           FOR THE
                                               THE COURT:
                                                   COURT:



                                            JOHN P. TAITT
                                           JOHN    P. TAITT
                                            Chief Deputy Clerk of Court
                                           Chief Deputy Clerk of Court




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