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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.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

2

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 
HO-SHING—ARMY 20150167 

3

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. 
HO-SHING—ARMY 20150167 

4

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 
HO-SHING—ARMY 20150167 

5

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-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 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. 
HO-SHING—ARMY 20150167 

6

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 THE COURT: 

JOHN P. TAITT 

Chief Deputy Clerk of Court 

JOHN P. TAITT 

Chief Deputy Clerk of Court 

FOR THE COURT: