UNITED STATES, Appellee 

v. 

Demetrius R. CRUDUP, Private 

U.S. Army, Appellant 

No. 08-0392 

Crim. App. No. 20050112 

United States Court of Appeals for the Armed Forces

Argued October 29, 2008 

Decided December 4, 2008 

STUCKY, J., delivered the opinion of the Court, in which ERDMANN 

and RYAN, JJ., joined. EFFRON, C.J., filed a separate 

dissenting opinion, in which BAKER, J., joined. 

Counsel

For Appellant: Captain William J. Stephens (argued); Lieutenant 

Colonel Jonathan Potter and Major Teresa L. Raymond (on brief); 

Colonel Christopher O’Brien, Lieutenant Colonel Steven C. 

Henricks, Lieutenant Colonel Mark Tellitocci, and Captain Nathan 

J. Bankson. 

For Appellee: Captain James L. Ndiaye (argued); Colonel Denise 

R. Lind and Captain Philip M. Staten (on brief); Colonel John W. 

Miller II, Major Tami L. Dillahunt, and Major Elizabeth G. 

Marotta. 

Military Judge: Donna M. Wright 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Crudup, No. 08-0392/AR 

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 Judge STUCKY delivered the opinion of the Court. 

 We granted review to decide whether the United States Army 

Court of Criminal Appeals (CCA) erred in holding that the 

improper admission of an out-of-court, testimonial statement was 

harmless beyond a reasonable doubt. We affirm. 

I. Background 

A. Facts 

 The CCA described the facts of the case as follows: 

 On 28 August 2004, Military Police (MP) Officer 

Sergeant (SGT) Vasquez was called to investigate 

allegations by one of appellant’s neighbors, Mrs. F, 

of a domestic disturbance near appellant’s government 

quarters on Fort Carson, Colorado. Mrs. F testified 

she heard “a lot of yelling and screaming” and saw 

[PC, Appellant’s wife] backing away in a defensive 

posture from appellant. 

 Upon arriving at the scene, SGT Vasquez saw 

appellant sitting outside. When SGT Vasquez got out 

of the MP vehicle, appellant approached SGT Vasquez, 

and said he had an altercation with his wife and he 

was the person for whom SGT Vasquez was looking. 

Sergeant Vasquez, with appellant’s consent, entered 

appellant’s quarters. Inside, appellant completed a 

data sheet and SGT Vasquez’s MP partner soon arrived. 

When SGT Vasquez asked where appellant’s wife was, 

appellant said she was at a neighbor’s house down the 

street. 

 Approximately fifteen to twenty minutes after 

arrival at the scene, SGT Vasquez proceeded to the 

neighbor’s house four doors down where he found 

appellant’s wife with a bruised and swollen face. She 

appeared to have been crying, was clearly upset, and 

told SGT Vasquez appellant pushed her to the ground 

while she was holding their infant son, punched and 

kicked her, and also kicked their son in the face. 
United States v. Crudup, No. 08-0392/AR 

3

 Furthermore, [Specialist (SPC)] F (appellant’s 

neighbor and Mrs. F’s husband) testified that he 

looked out his window and saw appellant standing over 

[PC], who was defensively curled up in a ball. He 

then saw appellant kick [PC] and could see the 

couple’s infant son in her arms. Another neighbor, 

SGT L, also testified that she saw appellant push [PC] 

to the ground while she held the infant, and then 

observed appellant kick her and drag her by the hair 

across the lawn. Sergeant L also saw appellant hit 

the infant during the altercation. Later that day 

Mrs. F saw [PC] with bruises on her back, and marks on 

her arms and face. [PC] also showed Mrs. F marks on 

the infant’s face. Later in the week, SPC F saw [PC], 

who still had bruised and puffy eyes. 

 Appellant later signed a sworn statement 

admitting to grabbing and pushing his wife onto the 

floor of their quarters. He also admitted that after 

she punched him in the head, he went after her -- 

pushing her into the grass and kicking her. Appellant 

stated his wife was not holding their infant son when 

he pushed her onto the grass. 

 The defense, in addition to entering [PC’s] 

previous state convictions for offenses related to 

fraud, adopted Ms. R, a government witness, as its 

own. Ms. R, a friend of both appellant and [PC], 

testified she saw [PC] trip and fall while holding the 

couple’s infant son and walking backwards away from 

appellant. Although she saw appellant attempt to kick 

[PC], she did not actually see him kick either [PC] or 

the infant. Ms. R testified she took the infant from 

[PC] after the fall because she was afraid that 

appellant and [PC] might get into an altercation. She 

then went into the house to get her brother. She 

admitted that she did not know whether appellant hit 

[PC] while she was gone. 

United States v. Crudup, 65 M.J. 907, 908-09 (A. Ct. Crim. App. 

2008). 
United States v. Crudup, No. 08-0392/AR 

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B. Trial 

 At trial, PC did not testify. Instead, over the objection 

of the defense, the military judge permitted SGT Vasquez to 

testify that PC told him that Appellant had pushed her to the 

ground while holding the baby, punched and kicked her, and 

kicked the baby in the face. 

 The military judge convicted Appellant, consistent with his 

pleas, of resisting apprehension and making a false official 

statement, and contrary to his pleas, of signing a false 

official record, and three specifications of assault consummated 

by a battery. Articles 95, 107, and 128, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. §§ 895, 907, 928 (2000). The 

military judge sentenced him to a bad-conduct discharge and 

confinement for three years. The convening authority approved 

the sentence as adjudged. 

C. The Decision of the Court of Criminal Appeals 

 The CCA held that the introduction of the out-of-court 

statements PC made to SGT Vasquez about the batteries violated 

Appellant’s Sixth Amendment confrontation rights. Crudup, 65 

M.J. at 910. Nevertheless, the CCA concluded that the error was 

harmless beyond a reasonable doubt and affirmed. Id. The CCA’s 

entire analysis of the harmlessness issue is as follows: 

We must now determine whether this error was harmless 

beyond a reasonable doubt. The record of trial in 

this case contains overwhelming evidence supporting 
United States v. Crudup, No. 08-0392/AR 

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appellant’s convictions of assault. Upon arriving at 

the scene in response to a complaint of domestic 

violence, appellant admitted he had an altercation 

with his wife and he “was the one [they were] looking 

for.” Moreover, the extent of [PC’s] and her son’s 

injuries and the testimony of two of appellant’s 

unbiased neighbors, SGT L and SPC F, describing the 

assaults in great detail, contradict Ms. R’s account 

that [PC] simply tripped and fell. We are convinced, 

therefore, that the military judge’s error was 

harmless beyond a reasonable doubt. 

Id. 

II. Discussion 

 Before this Court, Appellant alleges that the introduction 

of PC’s out-of-court statement was not harmless beyond a 

reasonable doubt with respect to Specification 4 of Charge I. 

That specification alleged that Appellant unlawfully “shoved 

[JC], a child under the age of 16 years, to the ground with his 

hands by unlawfully shoving [PC] to the ground while she was 

holding [JC] in her arms.” 

 The denial of an accused’s Sixth Amendment right to crossexamine a witness may be tested for harmlessness. See Delaware 

v. Van Arsdall, 475 U.S. 673, 684 (1986); United States v. 

Othuru, 65 M.J. 375, 377 (C.A.A.F. 2007). We will not set aside 

Appellant’s conviction if we “may confidently say, on the whole 

record, that the constitutional error was harmless beyond a 

reasonable doubt.” Van Arsdall, 475 U.S. at 681. 

The correct inquiry is whether, assuming that the 

damaging potential of the cross-examination were fully 

realized, a reviewing court might nonetheless say that 
United States v. Crudup, No. 08-0392/AR 

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the error was harmless beyond a reasonable doubt. 

Whether such an error is harmless in a particular case 

depends upon a host of factors, all readily accessible 

to reviewing courts. These factors include the 

importance of the witness’ testimony in the 

prosecution’s case, whether the testimony was 

cumulative, the presence or absence of evidence 

corroborating or contradicting the testimony of the 

witness on material points, the extent of crossexamination otherwise permitted, and, of course, the 

overall strength of the prosecution’s case. 

Id. at 684. Whether a constitutional error in admitting 

evidence is harmless beyond a reasonable doubt is a question of 

law that we review de novo. Arizona v. Fulminante, 499 U.S. 

279, 295 (1991); Othuru, 65 M.J. at 378. 

 In Othuru, we applied the five Van Arsdall factors in 

determining whether a constitutional error was harmless beyond a 

reasonable doubt. Othuru, 65 M.J. at 378-80. We noted that the 

CCA appeared to have relied solely on the overall strength of 

the government’s case in finding the error harmless beyond a 

reasonable doubt, and cautioned that “[i]t is a better practice 

to review and balance all of the Van Arsdall criteria,” rather 

than rely on only one of them. Id. at 378 n.3. The CCA in this 

case cited to Othuru as authority for reviewing the 

constitutional error for harmlessness. Crudup, 65 M.J. at 909. 

But the CCA discussed only one of the Van Arsdall factors -- the 

overall strength of the Government’s case -- without mentioning 

whether it had even considered the other four factors. Id. at 

910. 
United States v. Crudup, No. 08-0392/AR 

7

 Applying the Van Arsdall factors to the facts of this case, 

we hold that the admission of PC’s out-of-court statement was 

harmless beyond a reasonable doubt. 

 (1) The importance of the witness’s testimony: PC’s 

testimony was important in the sense that she was a victim and 

was the only witness to the entire incident. But it was 

“‘unimportant in relation to everything else the [military 

judge] considered on the issue in question, as revealed in the 

record.’” Othuru, 65 M.J. at 377 (quoting Yates v. Evatt, 500 

U.S. 391, 403 (1991), overruled on other grounds by Estelle v. 

McGuire, 502 U.S. 62, 72 n.4 (1991)). 

 (2) Whether the testimony was cumulative: It was. 

 (a) SPC F testified that he saw Appellant yelling at 

his wife, who was on the ground, holding her son. In a previous 

written statement he had stated that PC was not holding him. 

 (b) SGT L testified that she saw Appellant pushing 

PC, who had the baby in her arms. Appellant hit PC and the baby 

causing PC to fall to the ground with the baby in her arms. 

 (c) Ms. R testified that she observed part of the 

incident and thought the baby was in PC’s arms when she fell to 

the ground, but was not sure whether she fell or was pushed. 

 (d) In his written statement to the MPs, Appellant 

admitted that he pushed PC into the grass and kicked her while 
United States v. Crudup, No. 08-0392/AR 

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she was on the ground. He denied that PC was holding the baby 

in her arms at the time. 

 (3) Evidence corroborating or contradicting the statement: 

SGT L saw Appellant strike PC causing her to fall to the ground. 

Appellant admitted pushing her into the grass and kicking her 

while she was on the ground. SGT L, SPC F, and Ms. R agreed 

that the baby was in PC’s arms when she went to the ground, 

although SPC F had previously stated that PC was not holding the 

baby when he saw her on the ground. 

 (4) The extent of cross-examination permitted: As PC did 

not testify at trial, and there was neither an Article 32, UCMJ, 

10 U.S.C. § 832 (2000), investigation nor a deposition, 

Appellant did not have an opportunity to cross-examine her. 

However, the defense was permitted to impeach PC’s credibility 

with a prior conviction for fraud. See Military Rule of 

Evidence (M.R.E.) 806 (permitting impeachment of a hearsay 

declarant’s statement that is entered into evidence). 

 (5) Overall strength of the Government’s case: The case 

was quite strong, including eyewitness testimony, corroborating 

physical injuries, and Appellant’s partial confession. 

 Based on our review of the Van Arsdall factors, we are 

convinced that the admission of PC’s out-of-court statement into 

evidence was harmless beyond a reasonable doubt. It did not 

“‘contribute’” to the verdict as it was unimportant in relation 
United States v. Crudup, No. 08-0392/AR 

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to the other evidence of record. Othuru, 65 M.J. at 377 

(quoting Yates, 500 U.S. at 403). 

III. Decision 

 The decision of the United States Army Court of Criminal 

Appeals is affirmed. 
United States v. Crudup, No. 08-0392/AR 

EFFRON, Chief Judge, with whom BAKER, Judge, joins 

(dissenting): 

 Appellant was convicted of a variety of offenses arising 

out of an incident involving his wife and his infant son. The 

offenses included assaulting his wife, assaulting his son, 

resisting apprehension, making a false official statement, and 

signing a false official record. 

At trial, a military law enforcement officer who responded 

to the scene of an altercation between Appellant and his wife on 

August 28, 2004, testified about the information he had obtained 

from Appellant’s wife. According to the officer, Appellant’s 

wife said that Appellant had pushed her to the ground while she 

was holding their infant son. Appellant, in a written statement 

provided on the day of the incident, acknowledged that he pushed 

and kicked his wife, but denied that his wife was holding their 

son during the incident. Four neighbors, all of whom only 

witnessed fragments of the altercation, testified about portions 

of the incident. 

Appellant and his wife were the only persons present for 

the entire incident. At trial, the prosecution introduced 

Appellant’s sworn statement into evidence, along with the 

testimony of the military law enforcement officer recounting the 

statement attributed to Appellant’s wife. 
United States v. Crudup, No. 08-0392/AR 

2

On appeal, the United States Army Court of Criminal Appeals 

held that the military judge erred in permitting the prosecution 

to offer the military law enforcement officer’s version of the 

statement attributed to Appellant’s wife. The court concluded 

that the statement attributed to the wife, as recounted in court 

by the military law enforcement officer, was testimonial. 

United States v. Crudup, 65 M.J. 907, 910 (A. Ct. Crim. App. 

2008). As such, the court held that the erroneous admission of 

this statement deprived Appellant of the right of confrontation 

under the Sixth Amendment to the Constitution. Id. at 907, 909-

10. 

The sole issue before our Court is whether the improper 

admission of the testimonial statement attributed to Appellant’s 

wife was harmless beyond a reasonable doubt. See United States 

v. Othuru, 65 M.J. 375, 377 (C.A.A.F. 2007) (observing that the 

“Government bears the burden of establishing that [the] 

constitutional error has no causal effect upon the findings”). 

I agree with the majority that the proper standard for the 

harmless error analysis is set forth in Delaware v. Van Arsdall, 

475 U.S. 673, 684 (1986). For the reasons set forth below, I 

respectfully dissent from the majority’s application of those 

factors in this case. 

 The first factor under Van Arsdall involves the importance 

of the witness’s testimony. The statement attributed to 
United States v. Crudup, No. 08-0392/AR 

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Appellant’s wife differed from the statements of the other 

witnesses in two vital respects. First, she was the only 

person, other than Appellant, to observe the incident in its 

entirety. Second, as an alleged victim in a charge growing out 

of the same incident, her testimony would likely have carried 

greater weight with the panel than the testimony of bystanders. 

 The second factor asks whether the testimony was 

cumulative. Although other witnesses testified as to portions 

of the incident, thus replicating the descriptive content of the 

wife’s statement to the military law enforcement officer, the 

statement attributed to Appellant’s wife was qualitatively 

unique. Only she could offer a description based on witnessing 

the entire incident, and only she could offer the perspective of 

being both the mother of the other alleged victim and an alleged 

victim herself. 

The third factor considers other evidence corroborating or 

contradicting the inadmissible statement. Only Appellant and 

his wife witnessed the incident from start to finish; none of 

the other witnesses observed the entire altercation. Mrs. F 

looked away when she called the military police. Specialist 

(SPC) F could not see what was happening as he ran downstairs to 

intervene. Sergeant (SGT) L was asleep when the altercation 

began. Ms. R turned her back to the scene as she carried off 

Appellant’s son to safety. The altercation also occurred in the 
United States v. Crudup, No. 08-0392/AR 

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early morning hours when it was still relatively dark outside, 

and the closest bystander-witness was no closer than ten feet 

from the couple when Appellant’s wife fell to the ground. 

The testimony presented in the court-martial contains a 

variety of contradictory statements about the incident. Ms. R 

stated that Appellant’s wife was not pushed, but instead fell 

while walking backwards away from Appellant. Although SPC F and 

SGT L testified they saw Appellant’s infant son in Appellant’s 

wife’s arms during the altercation, SPC F provided a different 

version of the events in his initial statement to military law 

enforcement officials. Given the conflicting evidence regarding 

whether the infant was in his mother’s arms as she fell to the 

ground, the importance of the statements attributed to 

Appellant’s wife cannot be discounted. 

The fourth factor involves the extent of cross-examination 

permitted at trial. Because Appellant’s wife did not testify, 

there was no cross-examination. 

The fifth factor concerns the overall strength of the 

Government’s case. I agree with the majority that the 

prosecution presented significant evidence at trial, even 

without the statement of Appellant’s wife. The evidence 

presented about the incident, however, consisted of partial 

observations and sometimes conflicting witness statements. The 

testimony of Ms. R, the only testifying witness who directly 
United States v. Crudup, No. 08-0392/AR 

5

intervened in the incident as it occurred, contradicted the 

other witnesses on the critical question of whether Appellant 

caused his wife’s fall. Appellant did not make any confession, 

complete or partial, to injuring his son. On the contrary, 

Appellant denied that his son was in the wife’s arms during the 

incident. The Government did not introduce any medical evidence 

that the child suffered injuries as a result of the incident, 

nor did the Government introduce any photographic evidence of 

physical injuries. In that regard, the Government relied solely 

on lay witness testimony that the child had red marks and 

bruising on his face that had not been observed prior to the 

incident. 

Even though a reasonable factfinder could have returned a 

verdict of guilty based on the evidence presented in this case, 

see United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) 

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)), that is 

not the standard at issue in this appeal. Here, the Government 

bears the burden of demonstrating that the erroneous admission 

of the wife’s testimony was harmless beyond a reasonable doubt. 

In light of the Van Arsdall factors, the Government has failed 

to meet its burden of demonstrating that “there is no reasonable 

possibility that the presence of the . . . testimonial 

statements contributed to the contested findings of guilty.” 

Othuru, 65 M.J. at 377. I would find that the constitutional 
United States v. Crudup, No. 08-0392/AR 

6

error is not harmless beyond a reasonable doubt, vacate the 

sentence, and remand for a new trial.