## UNITED STATES ARMY COUR T 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, Milit ary Judge (arraignment) Wade N. Faulkner, Mi litary Judge (trial) Lieutenant Colonel Alison C. Mart in, Staff Judge Advocate (pre-trial) Lieutenant Colonel Oren H. McKnell y, Staff Judge Advocat e (post-trial)

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

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

22 May 2017

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MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

TOZZI, Senior Judge:

An officer panel sitting as a general court-martia l convicted appellant, contrary to his pleas, of three specifications of as sault consumated by battery, and two specifications of communicating a thre at, in violation of Articles 128 and 134, Uniform Code of Military Just ice, 10 U.S.C. §§ 928, 934 (2012) [herei nafter UCMJ]. Appellant was found not guilty of one specification of rape, two specifications of aggravated assault, and on e specification of assault consumated by battery, in violation of Articles 120 and 128, UCMJ. The panel sent enced appellan t to a badconduct discharge, twelve months confinemen t, forfeiture of all pay and allowances, and reduction in grade to E-1. The conven ing authority approved only so much of the sentence as provided fo r a bad-conduct discharge, tw elve months confinement, and reduction in grade to E-1.HO-SHING—ARMY 20150167

2 This case is before us for review under Article 66, UCMJ. Appellate defense counsel assigned two errors to this cour t, one of which warra nts discussion but no relief. Appellant personally raised matters pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982), th at we find, after due cons ideration, to be without merit.

BACKGROUND

Appellant physically assau lted his wife, SH, on di vers occasions between 1 March 2010 and 14 February 2012, at or near Fort Cam pbell, Kentucky . Appellant also physically assaul ted SH on divers occa sions at or near K illeen, Texas, between 15 February 2012 and 25 Sept ember 2012. In additi on, appellant physically assaulted SH on or ab out 25 September 2012 by grabbing her hair and hitting her head on a bathtub. Appe llant was found not guilty of raping SH on or about 28 October 2013 at or n ear Killeen, Texas.

In his opening statement at trial, de fense counsel discus sed divorce as a motive for SH’s allegations by asserting:

Divorce, especially when one person doe sn’t want a divorce gets pretty messy, an d unfortunately you’re here today with a lot of allega tions of what can only be described as a me ssy divorce.

What happens when somebody wants to get back at someone who wants a divorce? You’re going to go after what they care abou t. Something that will definitely get their attention. You’re going to go after thei r relationship with their children, you’re goi ng 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 go ing to hear allegations made by a wo man, who after her husband decided on divorce, that is wh en she made the allegations.

Later in the open ing statement, defens e 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 wa nt to do.”

During cross-examination, defense counsel elicited testimony from SH that on 29 October 2013 she asked appell ant if he still wa nted a divorce and he said yes. When asked whether she spok e 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 a bout 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-w ife of a husband ch arged with sexualHO-SHING—ARMY 20150167

3 assault would receive. After government objection, the milita ry judge ruled the testimony was admissible, st ating: “The court finds th at the questions that the defense is asking are probativ e 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 gov ernment called six witnesses, three of whom testified SH made statements to them be fore July 2013 that she was physically a bused. These statements pre-dated the alleged motive to fabricate elicited through the defense witness, Ms. Watson. Thes e statements also pre-da ted SH’s realization on 29 October 2013 that appe llant still intended to divorce her.

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

Oh, he [appellant] told her al l the bad words, and he said to her I told you if you op en 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 th at she did so mething that he told her no t to do it, like open the door or something, so he hit her.

Following Ms. Martin ez’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 tria l. If you believe that such consistent stat ements were made, you may consider them for their tenden cy to refute the charge of recent fabrication. You ma y also consid er the prior consistent statements as ev idence of the truth of the matters expressed therein.

Rebuttal witness KL, SH’s uncle, te stified over the obje ction of defense counsel, who claimed the motive to fabricat e only related to th e rape charge. The military judge overruled that defense objec tion and KL testified he called SH on 25 September 2012. SH was crying dur ing the telephone cal l and told him:

[Appellant] currently is beat ing 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.HO-SHING—ARMY 20150167

4 And he step on my foot hurti ng me. He used his elbow to push my mouth, which ch ipped my tooth.

After KL asked SH if she want ed him to call the police, SH stated she did not want her husband to get in trouble. KL then to ld 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 pane l as was given after the te stimony 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 sh ow up for work one day, SH replied she went to the emergenc y room. Ms. Kim test ified 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 co nsider the prio r consistent statement as evidence of the truth of the matters expressed therein.

The military judge also gave the standard spill over instruction to the panel.

LAW AND DISCUSSION

Appellant alleges the mil itary judge abused his di scretion by allowing testimony about SH’s prior consistent statements. The defense argued this information should no t be admitted because they limited their claim of recent fabrication to the testimony of SH rega rding her inquiry ab out compensation for victims of sexual assault. However, we find the defens e also opened the door to rebut a claim of recent fabrication thro ugh their argument and cross-examination that SH reported appellant’s conduct because appe llant still planned to divorce her. The record supports the mi litary judge’s finding that the rebuttal testimony containing SH’s prior consistent statements pre-da ted both her inqui ry regarding available compensation for victims of se xual assault and her realization on 29 October 2013 that ap pellant 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. Evi d.] 801(c). “Generall y, such evidence isHO-SHING—ARMY 20150167

5 inadmissible unless it meets ‘at least one ofthe specific and ti me-tested ex ceptions’ to the prohibition against he arsay, or falls within one ofthe categories of out-ofcourt 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 st atement of a witness is not hearsay if “‘offered to rebut an express or implied charge against the declarant of recent fabrication or imprope r 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 Ru le of Evidence 801(d)(1)(B) advisory committee’s note). Severa l “inherent safeguards” ar e contained in Mil. R. Evid. 801(d)(1)(B), which must be satisfied before prior st atements 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 declar ant’s in-court testimony; an d, the statement must be offered to actually rebut an attack of recent fabricatio n or improper motive or influence.” Id.

We review a military judge’s decision to admit or exclude ev idence of a prior consistent statement for an abuse of di scretion. 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 prereq uisites of Mil. R. Evid. 8 01(d)(1)(B) were met. SH testified and was vigorously cross-examined by the defense. He r prior statements were consistent with her in-court testimony . The prior consiste nt statements were offered to rebut an attack of recent fabrication rais ed by the defe nse 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 pred ated the alleged recent moti ve to fabricate, and the prior statements rebutted the alle gation of recent fabrication. See Allison , 49 M.J. at 57. It is noteworthy that multiple motive s to fabricate are contemplated by the case law of our superior court. “‘Wher e multiple motive s 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-o pponent, 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 ag ainst 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.HO-SHING—ARMY 20150167

6 improper influences are asserted, the statem ent 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 th e prior consistent statements of SH.

Finally, even if the military judge erre d in admitting the st atements, we find no error that materially prejudiced appellant’s subs tantial rights. See UCMJ art. 59(a); McCaskey , 30 M.J. at 193. SH ’s testimony was corr oborated 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 wa s “setting me up”) was not persuasive. Photographic evidence of SH’s cr acked tooth was admitted into evidence. In addition, appellant freely admi tted 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 THE COURT:

JOHN P. TAITT Chief Deputy Clerk of Court JOHN P. TAITT Chief Deputy Clerk of Court FOR THE COURT: