UNITED STATES, Appellee 

v. 

William E. DATZ, Gunners Mate Second Class 

U.S. Coast Guard, Appellant 

No. 03-0638 

Crim. App. No. 001-69-01 

United States Court of Appeals for the Armed Forces 

Argued October 12, 2004 

Decided April 25, 2005 

BAKER, J., delivered the opinion of the Court, in which 

GIERKE, C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ., 

joined. 

Counsel

For Appellant: Lieutenant Commander Nancy J. Truax

(argued). 

For Appellee: Commander Duane R. Smith (argued); 

Lieutenant Commander John S. Luce (on brief). 

Military Judge: R. W. Bruce 

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION. 
United States v. Datz, No. 03-0638/CG 

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Judge BAKER delivered the opinion of the Court. 

Appellant was tried by a general court-martial composed 

of officer and enlisted members at Alameda, California. 

Contrary to his pleas, he was convicted of assaulting a 

petty officer, treating the same petty officer with 

contempt, sexually harassing a female member of his crew, 

unlawfully entering the civilian quarters of a member of 

his crew, three specifications of dereliction of duty, and 

rape in violation of Articles 91, 92, 120, and 134, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. §§ 891, 892, 

920, and 934 (2000), respectively. The adjudged and 

approved sentence provided for confinement for three 

months, and reduction from grade E-5 to grade E-3. 

Appellant did not receive a punitive discharge. 

 Appellant’s conviction and sentence were reviewed by 

the Acting Judge Advocate General of the Coast Guard 

pursuant to Article 69, UCMJ, 10 U.S.C. § 869 (2000), who 

directed the United States Coast Guard Court of Criminal 

Appeals to review the record. The Court of Criminal 

Appeals considered fourteen assignments of error from 

Appellant. The findings and sentence were determined to be 

correct in law and were affirmed. United States 

v. Datz, 59 M.J 510 (C.G. Ct. Crim. App. 2003). 

We granted review of the following three issues: 
United States v. Datz, No. 03-0638/CG 

3

I. WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO 

SUSTAIN A CHARGE OF RAPE WHERE THE VICTIM WAS 

AWAKE AND COHERENT YET TOTALLY PASSIVE, FAILED TO 

REASONABLY MANIFEST LACK OF CONSENT, AND THE ONLY 

EVIDENCE OF “FORCE” WAS MOVING HER LEG TO ACHIEVE 

PENETRATION. 

II. WHETHER THE MILITARY JUDGE ERRED BY ADMITTING 

TESTIMONY OF SUPPOSEDLY INCRIMINATING NONVERBAL 

GESTURES, WHERE THE INTERROGATOR COULDN’T 

REMEMBER WHAT QUESTIONS HE ASKED TO ELICIT THE 

GESTURES. 

III. WHETHER THE MILITARY JUDGE ERRED IN SUPPRESSING 

EVIDENCE OF THE RAPE VICTIM’S MOTIVE TO 

MISREPRESENT. 

Because we reverse this case on the basis of Issue II, we 

need not address Issues I and III. 

The military judge erred when he admitted an 

investigator’s testimony that Appellant manifested an 

adoptive admission, through an affirmative head nod, that 

the victim did not consent to intercourse. This testimony 

was predicated on the investigator’s recollection of the 

following predicate question: “[I]t was something to the 

effect . . . and it would have been, ‘She didn't in fact 

agree to have sex with you, did she?’ or something to that 

effect.” Given the ambiguity and the compound nature of 

the question asked, the Government did not meet its 

threshold burden of demonstrating that Appellant understood 

and unequivocally acquiesced in the statement at issue as 

presented by the investigator. Such threshold 
United States v. Datz, No. 03-0638/CG 

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determinations are not factual questions for the members to 

consider. Rather, they are foundational requirements to be 

determined by the military judge before adoptive admissions 

are presented to the members. Because this testimony 

effectively amounted to an admission by Appellant to the 

only contested element of the offense -- consent -- this 

was prejudicial error. 

Background

Appellant was charged with raping Petty Officer (PO) H 

at her townhouse in the early morning hours of June 27, 

1999. At trial, Appellant conceded that intercourse had 

occurred, but argued that the intercourse was consensual. 

Nonetheless, the members convicted him of rape. 

The Court of Criminal Appeals concluded that testimony 

that Appellant had moved PO H’s leg in order to have 

intercourse provided a legally sufficient basis for members 

to have found the element of force. With respect to the 

element of consent, trial counsel presented evidence that 

when Appellant showed up in PO H’s bedroom in the early 

morning hours, she told him to leave and that she answered 

his crude questions about having sex by saying “no.” The 

Government also presented evidence that PO H turned away 

from Appellant hoping he would fall asleep, and that when 

he continued with the act, she cried. 
United States v. Datz, No. 03-0638/CG 

5

At a session during trial pursuant to Article 39(a) 

UCMJ, 10 U.S.C. § 839 (2000), trial counsel proffered 

testimony from Special Agent (SA) Van Arsdale that during 

his interrogation Appellant had nodded in affirmative 

response to, and thereby indicated that he agreed with, 

four questions. These questions touched on: (1) whether 

PO H had left her door unlocked for Appellant or for 

someone else, (2) whether at a previous gathering where 

others were present, she had singled him out and invited 

him to her room, (3) whether it was true that PO H’s 

invitation, rather than to him individually, was to a group 

of people, and (4) whether or not PO H agreed to have 

intercourse with him. The following colloquy took place 

between the trial counsel and SA Van Arsdale: 

Q. Do you recall how you confronted him with that? 

A. In the same manner. This whole line of 

questioning was done in the same manner. “Isn’t 

it true the door wasn’t meant to be unlocked for 

you but somebody else?” Something along those 

lines. 

. . . . 

Q. Regarding [H] singling out and inviting him to 

her house and to her room. How would you have 

confronted the accused with that? 

A. It would have been along the same lines. Either 

“Isn’t it true?” or “Seaman [H] didn’t in fact 

invite you at all, did she?” 

Q. So posed as a question again? 

A. Posed as a question. 

 Just before that exchange, the military judge had 
United States v. Datz, No. 03-0638/CG 

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commented on SA Van Arsdale’s questioning of the accused: 

Military Judge: [T]he way you phrased the question, 

it doesn’t seem like it would call for a yes or 

no answer. 

[Trial Counsel:] Special Agent Van Arsdale, do you 

recall how you confronted the accused with Petty 

Officer [H]’s invitation being proposed to a 

group of people? 

[SA Van Arsdale:] Yes. 

Q. Can you explain that? 

A. Would have posed the question something like, 

“Isn’t it true that the invitation wasn’t 

directed toward you, but in fact it was directed 

towards a large group of people?” And then his 

response was an up-and-down head bob. 

. . . . 

Q. Special Agent Van Arsdale, I’m going to ask you 

again if you confronted the accused as to whether 

or not Petty Officer [H] had agreed to have sex 

with him. And did you? 

A. Yes. 

Q. And do you recall if he responded? 

. . . . 

A. He responded affirmatively to the question I 

posed. 

. . . . 

A. Again, it was something to the effect -– this 

whole line of questioning was around the same 

time, and it would have been, “She didn’t in fact 

agree to have sex with you, did she?” or 

something to that effect. 

 

Trial defense counsel initially objected to the 

admission of this testimony on the grounds that it was 

irrelevant and that its probative value was outweighed by 

its prejudicial effect. Counsel then went on to question 
United States v. Datz, No. 03-0638/CG 

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whether the testimony proffered demonstrated that Appellant 

had manifested his adoption of or belief in the statements: 

[T]here’s a real question -– I mean, the question’s 

posed. What does [the nodding] mean? Is he nodding 

affirmatively to the question, or is he just 

acknowledging the question, or is he just ticked off 

that these questions are coming at him one after 

another . . . ? 

Later, during cross-examination, defense counsel asked 

SA Van Arsdale about his questioning of Appellant and 

Appellant’s subsequent responses: 

Q. You asked the question, he nods his head, you 

don’t follow up with the question, “Is that a 

yes?” 

A. That’s correct. 

Q. So with all these questions, same exact scenario? 

You ask the question, boom, you move on to the 

next one, right? 

A. Pretty much, yes. 

 

Over defense counsel’s objections, the military judge 

admitted SA Van Arsdale’s testimony stating: 

Well, it seems to me that this is a question for 

the members as to the weight that they’re going to 

give to Van Arsdale’s testimony. 

. . . . 

[I]n terms of [Military Rule of Evidence 

(M.R.E.)] 403, I think there is certainly enough 

evidence there for the members to conclude that the 

accused made the admissions that Van Arsdale’s 

testifying to. And if they do, then that has strong 

probative value on those issues. 

On the other hand, the defense may convince them 

that the testimony of Van Arsdale on those issues has 

little or no value, and if they give it little or no 
United States v. Datz, No. 03-0638/CG 

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value, then, of course, there’s no prejudice to the 

defense. 

Notwithstanding the objection based on M.R.E. 403, the 

defense counsel did not expressly object that the head nods 

were inadmissible adoptive admissions under M.R.E. 

801(d)(2). But as noted above, he did question whether it 

could really be determined what Appellant’s head nodding 

meant. The special agents had not audiotaped or videotaped 

Appellant’s interview. Nor had Appellant been asked to 

prepare a written statement or sign a written statement 

prepared by the agents.1

 The military judge did not enter 

 

1 There are two documents describing Appellant’s interrogation. The 

first document consists of four pages of handwritten notes taken during 

the interview of Appellant by SA Lanigan as SA Van Arsdale conducted 

the interview. These notes, which do not include the questions at 

issue and do not record any corresponding nonverbal admissions by 

Appellant, are not part of the record of trial. The second document, a 

three-page typed interview report, is dated July 8, 1999. This 

document reflects in paragraphs e through h the following nonverbal 

admissions by Appellant: 

Leaving the Door Open

e. When confronted that [PO H’s] comment about leaving her 

door unlocked was directed at someone else and not to Datz, he 

nodded affirmatively, but did not verbally respond. 

Invitation into Home

f. When confronted that [PO H’s] invitation to her house that 

evening was made to a group of people, he acknowledged that he 

was standing near a group when the invitation was made and that 

the comment was not directed towards him. 

Invitation to Group or Appellant

g. When confronted that [PO H] did not single him out and 

invite him to her house or to her room that evening, he nodded 

affirmatively, but did not verbally respond. 

Consent to Sex
United States v. Datz, No. 03-0638/CG 

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predicate findings about the head nods as adoptive 

admissions. 

On appeal, Appellant contends the military judge erred 

by admitting SA Van Arsdale’s testimony concerning 

Appellant’s nonverbal head nods. Of the four adoptive 

admissions at issue, three addressed specific 

circumstantial aspects of the offense. The fourth 

admission went directly to one of the elements of rape, 

namely, whether the victim consented to the sexual 

intercourse. Appellant argues that because the head nods 

were admitted as adoptive admissions under M.R.E. 

801(d)(2), before the evidence could be presented before 

the members, the military judge was required to make a 

predicate finding that Appellant understood the content of 

the statements, and unequivocally acknowledged the 

statements in adopting them as his own. Appellant further 

argues that he did not adopt the statements that SA Van 

Arsdale says he did. Appellant contends that some of the 

 

h. When confronted that [PO H] did not agree to have sex with 

him, he nodded affirmatively, but did not respond verbally. When 

asked whether [PO H] told him to leave, he denied she made that 

comment. 

Although these documents were referenced at trial and on appeal, they 

were not admitted into evidence at trial and the military judge stated 

on the record, “I haven’t specifically looked at the notes, or anything 

like that.” Therefore, our review of the military judge’s evidentiary 

rulings on adoptive admissions is based on the evidence before the 

military judge at trial. 
United States v. Datz, No. 03-0638/CG 

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questions posed to him during his interrogation were 

ambiguous, making it impossible to determine what it was 

that he was adopting, if anything, including his response 

to the critical question of consent. Finally, Appellant 

asserts that, given the uncertainty regarding these alleged 

adoptive admissions, their prejudicial effect outweighed 

any probative value. On the issue of waiver or forfeiture, 

Appellant argues that his objection was made known at trial 

and the judge’s error should be reviewed for an abuse of 

discretion rather than for plain error. 

 According to the Government, military courts have 

recognized and admitted head nods as affirmative responses. 

Further, the Government argues that the military judge 

conducted a proper balancing test under M.R.E. 403 when he 

determined that SA Van Arsdale’s testimony regarding 

Appellant’s affirmative head nods was admissible. 

Finally, the Government argues that Appellant failed to 

object to this evidence at trial on the ground of M.R.E. 

801(d)(2)(B). On this basis, the Government argues, this 

Court should test the military judge’s ruling for plain 

error. 

Discussion

We first address the parties’ arguments regarding 

waiver or forfeiture, so as to determine the standard of 
United States v. Datz, No. 03-0638/CG 

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review we will apply in this case. Defense counsel, 

objecting to SA Van Arsdale’s testimony on the basis of 

M.R.E. 401 and 403, stated, “The objection is 401, 403, 

whether or not this evidence is relevant and whether or not 

any probative value it has is outweighed by the prejudicial 

effect.” Defense counsel did not cite to M.R.E. 

801(d)(2)(B). 

However, his argument on the motion addressed the 

issue of adoptive admissions generally and specifically 

raised concerns about whether Appellant’s nodding adopted 

the admissions posed by SA Van Arsdale. Among other 

things, trial defense counsel argued: 

The concerns -– I said this rule does not fall 

under the [admission by] silence rule [see United 

States v. Cook, 48 M.J. 236 (1998)], but the concerns 

that exist as a basis for the rule against admissions 

by silence by the accused apply here in that the rule 

is concerned with questions about the potential 

manufacture of evidence. 

. . . . 

Another question is -– as with the silence rule, 

there’s a question of the ambiguity about what this 

[nodding] means. 

. . . . 

But there’s a real question -– I mean, the question’s 

posed. What does it mean? Is he nodding 

affirmatively to the question, or is he just ticked 

off that these questions are coming at him one after 

another after he’s already told them what occurred? 

So important to consider in that, Your Honor, is the 
United States v. Datz, No. 03-0638/CG 

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nature of these questions, the series of questions, 

one after another, after another, after another. 

 

Under M.R.E. 103, in order to preserve an objection 

when “the ruling is one admitting evidence” the objecting 

party must make “a timely objection or motion to strike . . 

. in the record, stating the specific ground of the 

objection, if the specific ground was not apparent from the 

context.” M.R.E. 103(a)(1). The rule also provides that 

“[n]othing in this rule precludes taking notice of plain 

errors that materially prejudice substantial rights 

although they were not brought to the attention of the 

military judge.” M.R.E. 103(d). 

In the present context, we believe defense counsel met 

his burden under M.R.E. 103. Although defense counsel 

cited M.R.E. 401 and 403, he did so squarely in the context 

of an argument about Appellant’s nonverbal admissions. 

Thus, the specific ground for objection was known to the 

military judge. A party is not necessarily required to 

refer to a specific rule by citation. A party is required 

to provide sufficient argument to make known to the 

military judge the basis of his objection and, where 

necessary to support an informed ruling, the theory behind 

the objection. United States v. Banker, 60 M.J. 216 

(C.A.A.F. 2004); United States v. Brandell, 35 M.J. 369, 372 
United States v. Datz, No. 03-0638/CG 

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(C.M.A. 1992)(holding that “[a] defense counsel has the 

duty to identify the ‘specific grounds’ upon which an 

objection to evidence is based,” but that this duty is met 

when “all parties at trial fully appreciate the substance 

of the defense objection and the military judge has full 

opportunity to consider it”). 

But if Appellant preserved an objection based upon 

M.R.E. 801(d)(2)(B), the additional question framed by the 

Government is whether Appellant was also required to raise 

each argument in support of his objection at the time of 

trial or forfeit the opportunity to do so on appeal, absent 

a showing of plain error. Specifically, the Government 

argues that Appellant did not object on the ground that the 

questions posed to Appellant were ambiguous, but rather 

only because the questions were repetitive and it was not 

clear whether Appellant was adopting the admissions. 

We disagree with this argument. On its face, M.R.E. 

103 does not require the moving party to present every 

argument in support of an objection, but does require 

argument sufficient to make the military judge aware of the 

specific ground for objection, “if the specific ground was 

not apparent from the context.” This is not a case where 

counsel has shouted “hearsay,” and only later has come to a 

conclusion as to the basis for that objection. Here 
United States v. Datz, No. 03-0638/CG 

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counsel’s objection to the adoptive admissions was “brought 

to the attention” of the military judge. 

To require counsel for either side to identify all 

available arguments in support of his or her objection is 

unnecessary in a context where the military judge is 

presumed to know the law and follow it. In the heat of 

trial, where counsel face numerous tactical decisions and 

operate under time pressure, we do not require such 

elaboration to preserve error on appeal. 

We turn now to the substantive foundational 

requirements for adoptive admissions, as well as a military 

judge’s responsibilities in admitting adoptive admissions. 

 “A military judge’s ruling on admissibility of 

evidence is reviewed for abuse of discretion.” United 

States v. Johnson, 46 M.J. 8, 10 (C.A.A.F. 1997). In order 

to be overturned on appeal, the judge’s ruling must be 

“‘arbitrary, fanciful, clearly unreasonable’ or ‘clearly 

erroneous,’” United States v. Taylor, 53 M.J. 195, 199 

(C.A.A.F. 2000)(quoting United States v. Travers, 25 M.J. 

61, 62 (C.M.A. 1987)), or “influenced by an erroneous view 

of the law,” United States v. Sullivan, 42 M.J. 360, 363 

(C.A.A.F. 1995); United States v. Owens, 51 M.J. 204, 209 

(C.A.A.F. 1999). 
United States v. Datz, No. 03-0638/CG 

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Substantive Foundation

 Under Federal Rule of Evidence 801(d)(2)(B) and M.R.E. 

801(d)(2)(B), a statement is excepted from the general 

hearsay rule when it is one that has been offered against a 

party who has manifested an adoption or belief in its 

truth. An adoptive admission can be accomplished through 

nonverbal means, such as a hand or head motion. The text 

of the rule does not explicitly incorporate body gestures, 

but neither does it preclude such admissions.2

When a statement is offered as an adoptive admission, 

the proponent must present sufficient proof to support a 

finding that the party against whom the statement is 

offered heard, understood, and acquiesced in the statement. 

United States v. Robinson, 275 F.3d 371, 383 (4th Cir. 

2001); United States v. Beckham, 968 F.2d 47, 51-52 (D.C. 

Cir. 1992); Skiskowski v. United States, 158 F.2d 177, 181-

82 (D.C. Cir. 1946); United States v. Joshi, 896 F.2d 1303, 

1311 (11th Cir. 1990); United States v. Sears, 663 F.2d 

896, 904 (9th Cir. 1981); United States v. RodriguezCabrera, 35 F. Supp. 2d 181, 184-85 (D.P.R. 1999). These 

 

2

 Relying on United States v. Wallace, 34 M.J. 353, 355 (C.M.A. 1992), 

the Government argues that this Court has previously upheld the 

admission of an appellant’s head nods as an affirmative adoptive 

admission. Although Wallace was convicted in part on evidence of 

adoptive admissions, this Court’s opinion in Wallace did not address 

adoptive admissions and therefore does not inform our review of the 

military judge’s ruling in this case. 
United States v. Datz, No. 03-0638/CG 

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foundational requirements have been applied in military 

courts as well. United States v. Farris, 21 M.J. 702, 705 

(A.C.M.R. 1985); United States v. Garrett, 16 M.J. 941, 

943-944 (N.M.C.M.R. 1983). 

 We cite Garrett favorably because we agree with, and 

therefore adopt, that court’s articulation of the 

foundational requirements for admitting adoptive 

admissions, namely, a showing that (1) the party against 

whom it is offered was present during the making of the 

statement; (2) he understood its content; and (3) his 

actions or words or both unequivocally acknowledged the 

statement in adopting it as his own. Garrett, 16 M.J. at 

943-44. 

In Appellant’s case, however, the Government did not 

meet its foundational burden of demonstrating that 

Appellant understood and acquiesced in the statements 

admitted at trial before those statements were admitted 

into evidence. First, a review of the questions identified 

during the Article 39(a) session reflects ambiguity as to 

the actual questions asked of Appellant. During that 

session for example, SA Van Arsdale could not remember the 

exact questions he asked Appellant. SA Van Arsdale 

testified that he “[w]ould have posed the question 

something like, ‘Isn't it true that the invitation wasn't 
United States v. Datz, No. 03-0638/CG 

17

directed toward you, but in fact it was directed toward a 

large group of people?’ . . . ‘Isn't it true the door 

wasn't meant to be unlocked for you but somebody else? 

Something along those lines.’” Similar qualifications were 

repeated throughout SA Van Arsdale’s testimony. At one 

point, the military judge interjected, “I think that the 

last question was too vague to really mean anything since 

we don't know what all the questions were.” 

Second and most importantly, on the critical question 

of consent, the questions asked of Appellant, even if they 

were recalled exactly as given, were ambiguous because they 

contained compound elements. For example, at the Article 

39(a) session, SA Van Arsdale testified that he asked 

Appellant:

A. Again, it was something to that effect -- this 

whole line of questioning was around the same 

time, and it would have been, “She didn’t in fact 

agree to have sex with you, did she?” or 

something to that effect.” 

In response to such a question, it is not clear what an 

affirmative nod means. It could mean that PO H “did not in 

fact agree to have sex” with Appellant. But it could also 

mean, she did, i.e., “did she?” “Yes.” Alternatively, a 

“no” nod might signal agreement with the initial premise of 

the question, i.e., communicating “no, she did not agree to 

have sex.” Arguably, it might also reflect something 
United States v. Datz, No. 03-0638/CG 

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altogether different, like a dismissive gesture borne of 

Appellant’s irritation or frustration with the line of 

questioning.3 As a result, this testimony does not satisfy 

the Government’s threshold burden of showing that Appellant 

understood the question and unequivocally adopted the 

predicate of the question as his own. 

Prejudice

Adoptive admissions in context can present uncertain 

and ambiguous applications of the law of evidence, which 

are not solely questions of fact for the fact-finder. In 

this case, the fourth adoptive admission as presented by SA 

Van Arsdale was tantamount to a confession of the crime, 

but without the indicia of reliability of a written 

confession signed by the accused. 

Here, Appellant’s responses addressed and answered the 

main issue in the case: whether Appellant’s sexual 

encounter with PO H was consensual. On the question of 

consent, the Government offered two witnesses, the victim 

and SA Van Arsdale. The Government presented no other 

direct evidence of the rape. In light of this record, we 

 

3

 Although not part of our analysis, which hinges on the evidence 

presented to the military judge before admitting the statements, we 

note that before the members, the questions that SA Van Arsdale asked 

Appellant were presented with comparable ambiguity. On questioning by 

defense counsel, SA Van Arsdale agreed that he had asked Appellant: 

“[H] never invited you to the house?” and “[H] never agreed to have sex 

with [you]?” 
United States v. Datz, No. 03-0638/CG 

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cannot say with fair assurance that SA Van Arsdale’s 

testimony regarding Appellant’s affirmative responses to 

his questions did not have substantial influence on the 

panel’s decision. See Kotteakos v. United States, 328 U.S. 

750 (1946). 

 “‘[T]he defendant's own confession is probably the 

most probative and damaging evidence that can be admitted 

against him.’” Arizona v. Fulminante, 499 U.S. 279, 296 

(1991)(quoting Bruton v. United States, 391 U.S. 123, 139-

40 (1968)(White, J., dissenting)). Here that admission 

rested upon a law enforcement officer's interpretation of 

body language. Without some additional written, verbal, or 

video confirmation, this amounted to a confession by 

gesture of a critical element of the offense -- and the 

only contested element of the offense. Gestures and 

reactions vary from person to person under the pressure of 

interrogation. As a result, the military judge’s decision 

to admit evidence of Appellant’s head nodding without 

adequate foundation was prejudicial error. 

Decision

 The decision of the United States Coast Guard Court of 

Criminal Appeals is reversed as to Charge IV (rape) and 

specification 1 of Charge VI (unlawful entry). The 

findings of guilty as to those offenses and the sentence 
United States v. Datz, No. 03-0638/CG 

20

are set aside. The remaining findings of guilty are 

affirmed. The record of trial is returned to the Judge 

Advocate General of the Coast Guard. A rehearing on the 

affected findings and the sentence is authorized.