## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, TELLITOCCI, and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Specialist MICHAEL J. NORD United States Army, Appellant

ARMY 20120862

Headquarters, 25th Infantry Division David L. Conn, M ilitary Judge Colonel Mark A. Bridge s, Staff Judge Advocate

For Appellant: Colonel Ke vin Boyle, JA; Ma jor Amy E. Nieman, JA; Captain Matthew M. Jones, JA (on brief).

For Appellee: Colonel John P. Carrell, JA ; Lieutenant Colonel James L. Varley, JA; Captain Daniel M. Goldberg, JA (on brief).

28 August 2014

--------------------------------- SUMMARY DISPOSITION

---------------------------------

TELLITOCCI, Judge:

An officer and enlisted panel sitting as a general court- martial convicted appellant, contrary to his pl eas, of one specification of wrongful possession and use of methamphetamine, one specification of abusive sexual contact, and one specification of conduc t prejudicial to good order and discipline and of a nature to bring discredit upon the arme d forces, in violation of Articles 112a, 120, and 134, Uniform Code of Military Ju stice [hereinafter UCMJ], 10 U.S.C. §§ 912 a, 920, and 934. The panel sentenced appellant to a dishonorab le discharge, 5 years confinement, reduction to E-1, and forfe iture of $1,091.00 pa y per month for 60 months. The convening authority appr oved the adjudged sentence.NORD—ARMY 20120862

2 This case is before us pursuant to Article 6 6, UCMJ. Appellant raises numerous assignments of erro r, three of which merit di scussion and two of which

merit relief. 1

FACTS

Appellant was convic ted of abusive sexual contac t with Ms. BA while she was substantially incapacitated. The evidence at trial de monstrated that BA had no recollection of the events of the evening ot her than drinking at a local bar. After awakening the next morning BA was informed by a witnes s (Mr. JM) that JM had observed BA kneeling on the be d naked while appellant wa s behind her th rusting his hips with his pants around his ankles. Ba sed upon BA’s discussi ons with JM and her anal bleeding and discomfort, BA conclude d that appellant had engaged in anal

intercourse with her a nd she became agitated. Ms. BA di d not testify at the trial.

After multiple pretrial motions and argument, the military judge allowed into evidence two series of statements by BA. The first series were made during a phone

conversation with a friend in which BA stated that appe llant had raped her. The military judge admitted this stat ement as an exci ted utteranc e pursuant to Military Rule of Evidence [Mil. R. Evi d.] 803(2). In the second series of st atements, she told the triage nurse at th e medical facility that appellan t had anally raped her. The military judge admitted that under the medical treatment excep tion of Mil. R. Evid. 803(4). The military judge also conducted a thoroug h Confrontation Cl ause analysis

and determined that these statements were non-testimonial. Other statements by BA were excluded by the military judge and will not be discussed here.

LAW AND DISCUSSION

Admissibility of He arsay Statements

In his first assigned error, appellant alleges:

THE MILITARY JUDGE ERRED BY IMPROPERLY

ADMITTING MULTIPLE IN ADMISSIBLE HEARSAY

STATEMENTS.

We review a military judg e’s ruling on the admissib ility of eviden ce under an

abuse of discretion standard and will revers e only if the military judge’s findings of fact are clearly erroneous or if his decisi on is influenced by a cl early erroneous view

1 Appellant also pers onally raises three issues pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A . 1982), none of which merit discussion or relief.NORD—ARMY 20120862

3 of the law. United States v. Feltham, 58 M.J. 470, 474 (C.A.A.F. 2003); United

States v. Hollis , 57 M.J. 74, 79 (C.A.A.F. 2002).

Normally, hearsay is not ad missible absent an excep tion. Mil. R. Evid. 802.

The gist of appellant’s ar gument is that BA’s st atements were improperly admitted because they are “ double hearsay” citing, as an example, the second

footnote in United States v. Williamson, 26 M.J. 115, 117 (C.M .A. 1988). Appellant argues that because BA had no recollection of the even ts, her knowle dge was based

on what JM told her an d, therefore, anything she though t or believed as a result was inadmissible hearsay. Therefore, according to this logic, even if the Mil. R. Evid. 803 hearsay exceptions applie d, the statements ’ initial hearsay nature prevented

admission.

This argument fails simp ly because the statements do not contain double hearsay. BA was not repeati ng statements made by JM. She did not say “JM told me that I was raped. ” She was espousing her opinion and belief about events that had taken place, not parroti ng what someone else said.

Additionally, as a part of the same assi gnment of error, appe llant argues that

trial defense counsel was ineffe ctive for failing to object to the st atements made to the triage nurse. Because these statements were included in the pretrial motions and litigated before the military judge, the tr ial defense counsel’s objections were noted and preserved in the record . Trial defense counsel ob jected to and litigated the admissibility of BA’s statem ents, but could not have objected to the “double hearsay” because there was none.

Assuming, arguendo , that the statements were impermissibly admitted and

that the trial defense coun sel was ineffective, we w ill test for prejudice. Strickland v. Washington, 466 U.S. 668, 687 (19 84). Even if erroneous , the admiss ion of the two statements by BA was ha rmless as they we re of little probat ive value. The circumstances surrounding BA’s lack of direct recollection were before the factfinder via the triage nurse’ s testimony, as well as JM’s testimony as to what he saw happening in the bedroom. The trial defense counsel cr oss-examined witnesses and argued that BA had no reco llection of the events and was only repeat ing what she

was told.

The other evidence presented by the government is legally and factually

sufficient. See, e.g., United States v. Brooks, 60 M.J. 495, 497- 98 (C.A.A.F. 2005)

and United States v. Craion , 64 M.J. 531, 532 (Army Ct. Crim. App. 2006). This included JM’s eyewitness testimony that appe llant was having sex with BA, specifically, that appellant wa s behind BA with his pants around his ankles thrusting

at her while she was naked an d kneeling on the bed with her head down. There were also physical findings of perianal injuri es to BA discussed by the sexual assaultNORD—ARMY 20120862

4 nurse examiner, and BA’s DNA was found in the crotch area of appellant’s shorts. Finally, appellant made an oral statemen t to criminal investigators in which appellant incredibly described how he came to be standing behind BA with his pants

down at the time the witness en tered the room: that she fe ll off the bed and grabbed his shorts on the way to the floor.

Article 134 offense

Appellant also allege s that Charge V an d its Specification 2 failed to state an

offense and should , therefore, be dismissed. The government conced es that this charge should be dismissed based upon a failure of proof. We accept the government’s concession and will take approp riate action in our decretal paragraph.

Appellant further points ou t that the promulgating or der is incorrect in part and we agree. Although the military judge merged Specifications 1 and 2 of Charge IV prior to findings in response to a de fense motion, the promul gating order reflects two separate charges and co nvictions: Specification 1 alleges wron gful use of methamphetamine and Specification 2 alleges wrongful possession of methamphetamine. To proper ly reflect the proceedings, Specification 1 should be renamed “The Specifi cation” and should allege wrongful posse ssion and use, as follows: “Did, at or near Wheeler Army Airfiel d, Hawaii, on or about 11 August 2011, wrongfully possess an d use methamphetamine.”

CONCLUSION

Accordingly, the find ings of guilty as to Charge V and its Specification are set aside, and the charge an d its specification are dismisse d. The findings of guilty to the remaining charges and specifications, as am ended, are AFFIRMED.

We are able to reassess th e sentence on the basis of the error noted and do so after conducting a thorough analysis of the totality of the circumstances presented by appellant’s case and in acco rdance with the principles articulated by our superior

court in United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013) and

United States v. Sales , 22 M.J. 305 (C .M.A. 1986).

In evaluating the Winckelmann factors, we first find no dramatic change in the penalty landscape or exposure which might cause us pause in re assessing appellant’s

2 “In that [the accused], U.S. Army, did at or near, Wheeler Ar my Airfield, on or about 19 September 2011, ask SGT [DL] to take a urinalys is for him and that such conduct was to the pr ejudice of good order and discipline in th e armed forces and was of a nature to bring discredit upon the armed forces.”NORD—ARMY 20120862

5 sentence. Second, appellant was sentenced by pa nel members but because the remaining offenses are not ba sed on customs of the servic e, this factor has less weight. Third, we find the nature of the rema ining offenses st ill captures the gravamen of the original sp ecifications. Fina lly, based on our experience, we are

familiar with the remaini ng offenses so that we ma y reliably determine what

sentence would have been imposed at trial.

In reassessing the se ntence, based on the noted error a nd the entire record, we AFFIRM only so much of th e sentence as provides for a dishonorable discharge, 58 months confinement, reduction to E-1, and forfeiture of $1,091.00 pay per month for

58 months. We find this reas sessed sentence is not only purged of any error but is also appropriate. All rights, privileges, and property, of whic h appellant has been deprived by virtue of that portion of the findings a nd sentence set aside by this decision, are orde red restored. See UCMJ arts. 58b(c) and 75(a).

Senior Judge COOK and Judge HAIGHT concur.

FOR THE COURT:

ANTHONY O. POTTINGER Chief Deputy Clerk of Court ANTHONY O. POTTINGER Chief Deputy Clerk of Court FOR THE COURT: