UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, PENLAND, and FEBBO 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class DALE A. GAGNON 

United States Army, Appellant 

ARMY 20130210 

Headquarters, United States Army Alaska 

Stefan R. Wolfe, Military Judge 

Colonel Tyler Harder, Staff Judge Advocate (pretrial) 

Colonel Erik L. Christiansen, Staff Judge Advocate (post-trial) 

For Appellant: Captain Scott A. Martin, JA; C. Ed Massey, Esquire (on brief); 

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie, III, 

JA; Major Melissa Dasgupta Smith, JA; Captain Jennifer A. Donahue, JA (on brief). 

31 July 2017 

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SUMMARY DISPOSITION 

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FEBBO, Judge: 

In this appeal, we address whether the military judge violated appellant's 

Sixth Amendment right to confront a seven year old witness against him by allowing 

the witness to testify outside of appellant's presence. 

 A panel composed of officer and enlisted members, sitting as a general courtmartial convicted appellant, contrary to his pleas, of one specification of aggravated 

sexual contact with a child, in violation of Article 120 of the Uniform Code of 

Military Justice, 10 U.S.C. § 920 (2006 & Supp. IV 2011) [hereinafter UCMJ]. The 

members sentenced appellant to a dishonorable discharge, confinement for fourteen 

years, forfeiture of all pay and allowances, and reduction to the grade of E-1. 

Except for reducing the sentence of confinement to thirteen years and six months, 

the convening authority (CA) approved the adjudged sentence. 

This case is before us for review pursuant to Article 66, UCMJ. Appellant 

raises seven assignments of error, only one of which—that the military judge 
GAGNON—ARMY 20130210 

2 

allowed a witness to testify outside of the presence of the appellant—warrants 

discussion, but no relief.1

BACKGROUND 

In July of 2009, Private First Class (PFC) Gagnon and his spouse, Ms. SG, 

divorced. In the summer of 2011, after the divorce, they shared custody of their two 

young children, LG and KG. 

Sometime after August 2011, LG told her babysitter, Mrs. JF, that she was 

sexually abused by her father—PFC Gagnon. Mrs. JF, informed Ms. SG of LG’s 

allegations. Initially, Ms. SG did not report the allegations to authorities or confront 

PFC Gagnon. Two weeks later, Mrs. JF, reported the allegations to her own 

therapist, which led to notifications to the Office of Children’s Services (OCS) in 

Fairbanks, Alaska, and the Fairbanks Police Department. During the initial OCS 

interview, LG did not disclose any sexual abuse by PFC Gagnon. However, in a 

subsequent OCS interview, LG stated her father had touched her vaginal area. 

After the initial disclosure of the abuse allegations, LG was referred to a 

therapist, Ms. SH, for mental health treatment. By the time of trial, Ms. SH had 

completed approximately thirty-six sessions with LG and had diagnosed LG with 

Post-Traumatic Stress Disorder as a result of PFC Gagnon’s abuse. 

At trial, the government moved in limine to have LG testify remotely. LG 

was then seven years old. In support of the motion, Ms. SH testified as an expert in 

child therapy and about her diagnosis and observations of LG based on their many 

therapy sessions. Ms. SH testified as to LG’s body language and demeanor during 

the counselling sessions when discussing her father and that LG still feared him. 

Ms. SH recommended that LG not testify in front of appellant and concluded that 

doing so could negatively impact and cause regression of LG’s mental health. After 

considering the matters presented on the motion, the military judge found that LG 

 

1

 We briefly address two other assigned errors. 

First, we find the military judge did not err in denying appellant’s individual 

military counsel (IMC) request based on a finding appellant released the same 

counsel before trial. 

Second, while we agree the government was dilatory in its post-trial processing of 

this case, we do not find a due process violation. The Staff Judge Advocate 

recommended the CA credit appellant with three months against the sentence to 

confinement for the post-trial delay. The CA, by granting six months of 

confinement credit, more than remedied any harm to the appellant. 
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3 

still feared her father and was unable to testify in open court in the presence of the 

appellant without suffering significate emotional trauma.2

 Accordingly, the military 

judge granted the government’s motion to allow LG to testify remotely. 

At the start of trial on the merits, PFC Gagnon’s defense counsel informed the 

government that appellant elected to be absent from the courtroom and to have LG 

testify in front of the panel. The military judge accommodated appellant’s request 

for one-way video and audio, which allowed PFC Gagnon to observe LG’s 

testimony, but not allow the panel to observe appellant. Appellant had one defense 

counsel with him in a room adjacent to the courtroom while the other defense 

counsel was present in the courtroom during LG’s testimony. The parties agreed if 

LG could not verbally respond to questions during her testimony her guardian ad 

litem would read LG’s written responses. 

Prior to LG’s testimony, the military judge gave the panel an instruction to 

explain the appellant’s absence from the court-room while his daughter testified. 

LG testified that appellant touched her private parts and indicated on a blank female 

diagram that he touched her vaginal area. For most of the remaining questions on 

direct and cross-examination, LG wrote down the answer to the counsel’s question, 

the parties reviewed the answer to make any objections, and the guardian ad litem

then read the answer to the panel. 

LAW AND DISCUSSION 

A. Whether the Military Judge Erred in Allowing LG to Testify Outside the Presence 

of Appellant 

On appeal, appellant asserts he was denied a meaningful opportunity to 

confront and cross-examine his accuser. Appellant asserts his defense counsel could 

not adequately prepare for trial since he did not have an opportunity to question LG 

before trial. At trial, appellant states he was removed from the courtroom during the 

testimony of LG. Furthermore, LG failed to give verbal responses and instead wrote 

responses to questions asked by counsel. As a result, counsel asserts, this process 

and procedure violated appellant’s rights. 

1. Forfeiture and Waiver 

Before addressing appellant’s allegation of error, we first must determine 

whether the issues were preserved on appeal. Appellant objected to the government 

motion for LG to testify remotely. The military judge nonetheless, over defense 

objection, allowed for testimony in this manner. We reject the government’s 

 

2

 During appellate review, the court granted the government’s motion to attach the 

military judge’s written ruling on the motion as part of the record. 
GAGNON—ARMY 20130210 

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assertion that appellant’s decision to leave the courtroom affirmatively waived his 

Sixth Amendment challenge to remote testimony. Appellant elected to be absent 

from the courtroom during LG’s testimony, as was his option under Rule for CourtMartial [hereinafter R.C.M.] 804(d), thereby removing the requirement for LG to 

testify remotely. In our view, however, his election did not change the fundamental 

nature of his objection of not being present in the same setting while LG testified, 

thus impinging on his right to confront the witness. Therefore, we will review for 

plain error the military judge’s decision to allow LG to testify remotely and the 

procedures set up to protect appellant’s Sixth Amendment right to confront 

witnesses. 

On the other hand, appellant has not preserved his two other challenges to 

LG’s testimony on appeal. Failure to assert a right in a timely manner forfeits the 

issue on appeal absent plain error. United States v. Ahern, 76 M.J. 194, 197 

(C.A.A.F. 2017) (citing United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009)). 

First, appellant did not specifically file a motion to compel production of LG for an 

interview prior to trial.3

 Second, appellant did not object to the procedure allowing 

LG to write her answers. In fact, for each written answer, the parties reviewed LG’s 

answer before being read to the panel and the appellant’s defense counsel indicated 

on the form there were “no objections.” As a result, appellant’s challenge on appeal 

about her written answers is waived. 

2. Review of the Military Judge’s Ruling for Remote Testimony 

The Confrontation Clause of the Sixth Amendment guarantees that "in all 

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the 

witnesses against him." U.S. Const. amend. VI. A military judge’s application of 

Military Rule of Evidence [hereinafter Mil. R. Evid.] 611(d) is a question of law that 

is reviewed de novo. United States v. McCollum, 58 M.J. 323, 332 (C.A.A.F. 2003). 

In applying Mil. R. Evid. 611(d), the military judge must satisfy the requirements 

for an exception to physical, face-to-face confrontation laid out in Maryland v. 

 

3

 Since the issue was forfeited and we do not find any plain error, we need not 

decide whether or not appellant was improperly precluded from interviewing LG. 

We note from e-mails attached to appellate exhibits, that appellant’s counsel 

requested for the government trial counsel to arrange an interview of LG before 

trial. Since Ms. SG was also a witness at trial, the defense counsel requested that 

someone other than Ms. SG be present for LG’s interview with defense counsel and 

their expert. Ms. SG objected to a defense interview of LG unless she was also 

present. As this court found in United States v. Guardado, compulsory process 

under Article 46, UCMJ, is limited to producing witnesses to “appear and testify” 

and does not include a requirement that the witness first agree to be interviewed. 75 

M.J. 889, 904 (Army Ct. Crim. App. 2016), rev. granted on other grounds, 76 M.J. 

166 (C.A.A.F. 2017). 
GAGNON—ARMY 20130210 

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Craig, 497 U.S. 836 (1990). Craig recognized there is an important public interest 

in “the physical and psychological well-being of a minor victim.” Id. at 852. 

Craig stands for the proposition that a witness may testify 

out of an accused's presence only where the trial court 

finds (1) that there is an important public interest that will 

be served by denying physical confrontation, (2) that such 

denial is necessary to further that interest, and (3) that 

other measures will ensure the reliability of the testimony. 

McCollum, 58 M.J. at 329. 

After reviewing the record of trial, to include the testimony of LG’s therapist, 

we find the military judge properly interpreted and applied Mil. R. Evid. 611(d) and 

Craig in allowing LG to testify out of the presence of the appellant. First, the 

record fully supported the military judge’s determination that LG would have been 

unable, out of fear, to testify in appellant's presence and would also have suffered 

significant emotional trauma. Second, the procedures implemented by the military 

judge properly protected appellant's right to confrontation. The military judge 

ensured that appellant was able to communicate with his counsel at all times during 

LG's testimony. The military judge also required LG to testify in court, under oath, 

in the presence of the panel, and be subject to cross-examination by appellant’s 

counsel. These protections were sufficient to ensure the reliability of LG's 

testimony despite appellant's absence. 

We therefore hold that the military judge did not violate appellant's Sixth 

Amendment right to confront a witness against him by allowing LG to testify outside 

of appellant's presence. 

CONCLUSION 

 The findings of guilty and the sentence are correct in law and fact and are 

AFFIRMED. 

 Senior Judge MULLIGAN and Judge PENLAND concur. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: