UNITED STATES ARMY COURT 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, Military Judge 

Colonel Mark A. Bridges, Staff Judge Advocate 

For Appellant: Colonel Kevin Boyle, JA; Major 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 

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SUMMARY DISPOSITION 

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

TELLITOCCI, Judge: 

An officer and enlisted panel sitting as a general court-martial convicted 

appellant, contrary to his pleas, of one specification of wrongful possession and use 

of methamphetamine, one specification of abusive sexual contact, and one 

specification of conduct prejudicial to good order and discipline and of a nature to 

bring discredit upon the armed forces, in violation of Articles 112a, 120, and 134, 

Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 912a, 920, and 

934. The panel sentenced appellant to a dishonorable discharge, 5 years 

confinement, reduction to E-1, and forfeiture of $1,091.00 pay per month for 60 

months. The convening authority approved the adjudged sentence. 
NORD—ARMY 20120862 

2 

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

numerous assignments of error, three of which merit discussion and two of which 

merit relief.1 

FACTS 

 Appellant was convicted of abusive sexual contact with Ms. BA while she was 

substantially incapacitated. The evidence at trial demonstrated that BA had no 

recollection of the events of the evening other than drinking at a local bar. After 

awakening the next morning BA was informed by a witness (Mr. JM) that JM had 

observed BA kneeling on the bed naked while appellant was behind her thrusting his 

hips with his pants around his ankles. Based upon BA’s discussions with JM and her 

anal bleeding and discomfort, BA concluded that appellant had engaged in anal 

intercourse with her and she became agitated. Ms. BA did 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 appellant had raped her. The 

military judge admitted this statement as an excited utterance pursuant to Military 

Rule of Evidence [Mil. R. Evid.] 803(2). In the second series of statements, she told 

the triage nurse at the medical facility that appellant had anally raped her. The 

military judge admitted that under the medical treatment exception of Mil. R. Evid. 

803(4). The military judge also conducted a thorough Confrontation Clause 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 Hearsay Statements 

In his first assigned error, appellant alleges: 

THE MILITARY JUDGE ERRED BY IMPROPERLY 

ADMITTING MULTIPLE INADMISSIBLE HEARSAY 

STATEMENTS. 

We review a military judge’s ruling on the admissibility of evidence under an 

abuse of discretion standard and will reverse only if the military judge’s findings of 

fact are clearly erroneous or if his decision is influenced by a clearly erroneous view 

 

1

 Appellant also personally 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 admissible absent an exception. Mil. R. Evid. 802. 

The gist of appellant’s argument is that BA’s statements 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 events, her knowledge was based 

on what JM told her and, therefore, anything she thought or believed as a result was 

inadmissible hearsay. Therefore, according to this logic, even if the Mil. R. Evid. 

803 hearsay exceptions applied, the statements’ initial hearsay nature prevented 

admission. 

This argument fails simply because the statements do not contain double 

hearsay. BA was not repeating 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 parroting what someone else said. 

Additionally, as a part of the same assignment of error, appellant argues that 

trial defense counsel was ineffective for failing to object to the statements made to 

the triage nurse. Because these statements were included in the pretrial motions and 

litigated before the military judge, the trial defense counsel’s objections were noted 

and preserved in the record. Trial defense counsel objected to and litigated the 

admissibility of BA’s statements, 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 counsel was ineffective, we will test for prejudice. Strickland 

v. Washington, 466 U.S. 668, 687 (1984). Even if erroneous, the admission of the 

two statements by BA was harmless as they were of little probative 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 cross-examined witnesses and 

argued that BA had no recollection of the events and was only repeating 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 appellant was having sex with BA, 

specifically, that appellant was behind BA with his pants around his ankles thrusting 

at her while she was naked and kneeling on the bed with her head down. There were 

also physical findings of perianal injuries to BA discussed by the sexual assault 
NORD—ARMY 20120862 

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nurse examiner, and BA’s DNA was found in the crotch area of appellant’s shorts. 

Finally, appellant made an oral statement 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 entered the room: that she fell off the bed and grabbed 

his shorts on the way to the floor. 

Article 134 offense 

Appellant also alleges that Charge V and its Specification2

 failed to state an 

offense and should, therefore, be dismissed. The government concedes that this 

charge should be dismissed based upon a failure of proof. We accept the 

government’s concession and will take appropriate action in our decretal paragraph. 

 Appellant further points out that the promulgating order 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 defense motion, the promulgating order reflects 

two separate charges and convictions: Specification 1 alleges wrongful use of 

methamphetamine and Specification 2 alleges wrongful possession of 

methamphetamine. To properly reflect the proceedings, Specification 1 should be 

renamed “The Specification” and should allege wrongful possession and use, as 

follows: “Did, at or near Wheeler Army Airfield, Hawaii, on or about 11 August 

2011, wrongfully possess and use methamphetamine.” 

CONCLUSION 

Accordingly, the findings of guilty as to Charge V and its Specification are 

set aside, and the charge and its specification are dismissed. The findings of guilty 

to the remaining charges and specifications, as amended, are AFFIRMED. 

We are able to reassess the 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 accordance 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 reassessing appellant’s 

 

2

 “In that [the accused], U.S. Army, did at or near, Wheeler Army Airfield, on or 

about 19 September 2011, ask SGT [DL] to take a urinalysis for him and that such 

conduct was to the prejudice of good order and discipline in the armed forces and 

was of a nature to bring discredit upon the armed forces.” 
NORD—ARMY 20120862 

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sentence. Second, appellant was sentenced by panel members but because the 

remaining offenses are not based on customs of the service, this factor has less 

weight. Third, we find the nature of the remaining offenses still captures the

gravamen of the original specifications. Finally, based on our experience, we are 

familiar with the remaining offenses so that we may reliably determine what 

sentence would have been imposed at trial. 

In reassessing the sentence, based on the noted error and the entire record, we 

AFFIRM only so much of the 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 reassessed sentence is not only purged of any error but is 

also appropriate. All rights, privileges, and property, of which appellant has been 

deprived by virtue of that portion of the findings and sentence set aside by this 

decision, are ordered 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: