UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

TOZZI, CAMPANELLA, and CELTNIEKS

Appellate Military Judges

UNITED STATES, Appellee

v.

Sergeant First Class STANLEY S. JNBAPTISTE

United States Army, Appellant

ARMY 20121113

Headquarters, Seventh U.S. Army Multinational Training Command

Joshua S. Shuey, Military Judge

Colonel David E. Mendelson, Staff Judge Advocate 

For Appellant: Frank J. Spinner, Esquire (argued); Frank J. Spinner, Esquire;

Captain Michael Millios, JA (on brief and reply brief). 

For Appellee: Captain Jihan Walker, JA (argued); Colonel John P. Carrell, JA; 

Major John K. Choike, JA; Captain Jihan Walker, JA (on brief).

14 April 2015

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

MEMORANDUM OPINION

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

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

A panel composed of officer and enlisted members sitting as a general courtmartial convicted appellant, contrary to his pleas, of one specification of attempted 

sodomy of a child under 12 years of age, one specification of indecent liberties with 

a child, and one specification of sodomy with a child under the age of 12 years, 

in violation of Articles 80, 120 and 125, Uniform Code of Military Justice, 10 

U.S.C. §§ 880, 920, 925 (2012) [hereinafter UCMJ]. The panel sentenced appellant 

to a dishonorable discharge, confinement for twenty years, forfeiture of all pay and 

allowances, and reduction to the grade of E-1. The convening authority approved 

only so much of the sentence as provided for a dishonorable discharge, confinement 

for twenty years, and reduction to the grade of E-1. 

This case is before us for review under Article 66, UCMJ. Appellant raises 

three assignments of error, one of which requires discussion but no relief. We also 
JNBAPTISTE—ARMY 20121113

2

find that the matters raised personally by appellant pursuant to United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982) are without merit. 

BACKGROUND

Appellant was convicted of anally sodomizing his 11-year old step-daughter, 

DH, between 1 February and 31 March 2009, while stationed in Germany with his 

family.

1 During the same time frame, but on different occasions, appellant 

attempted unsuccessfully to sodomize DH and also showed her pornographic 

material while lying naked in his bed with her. At some point after these acts

occurred, DH told appellant she did not wish to engage in further sexual acts with 

him. Appellant agreed to stop, and he instructed DH not to disclose what they had 

done. 

In July 2011, when DH was 14 years old, she disclosed to her mother, who 

was married to appellant at the time, that appellant had sexually molested her. 

Within the hour, DH’s mother confronted appellant and asked him if he touched DH. 

As explained in greater detail below, the government did not elicit appellant’s 

answer. DH’s mother demanded appellant leave the house immediately, which he 

did. 

After DH’s disclosure to her mother, DH was taken to a doctor for an 

examination where DH tested positive for the herpes simplex virus 2 in her anal and 

genital region. A review of DH’s medical records from Germany uncovered DH had 

previously tested positive for the Herpes virus in April 2009 when she presented to a 

physician with bumps around her genital and anal opening. The results of the 

German doctor’s test were not disclosed to DH’s mother until the 2011 medical 

records review. Both parents also tested positive for the virus. The government 

contended at trial that appellant transmitted the virus to DH during his sexual 

encounters with her in early 2009. Appellant asserted the acts with DH did not 

occur. 

On appeal, appellant now argues the military judge erred by sustaining a 

prosecution objection during the defense cross-examination of DH’s mother when 

defense sought to elicit appellant’s denial of the accusation that he touched DH. The 

relevant direct and cross-examination of DH’s mother occurred as follows, 

respectively: 

 

1 DH testified that appellant took lubricant out of his nightstand and placed it on his 

penis before sodomizing her. DH’s mother corroborated this testimony by 

confirming that she kept lubricant in her nightstand. 
JNBAPTISTE—ARMY 20121113

3

TC: Did you ask [appellant] anything directly? 

WIT: I did

TC: And what did you ask him?

WIT: I asked him, had he touched [the witness continued to 

cry] [DH].

TC: After this conversation with the accused did you demand anything?

WIT: Yes, that he leave the house.

TC: And did he?

WIT: He did. 

. . . . 

CDC: You talked a little bit about your confrontation with 

[appellant] after you learned of this reporting from your daughter, 

okay? 

 WIT: Yes

 CDC: And you were really upset - - - - 

 WIT: Yes

 CDC: Naturally? And you confronted him?

 WIT: Yes

 CDC: He denied it - - - -

 TC: Objection.

 CDC: - - - - didn’t he? 

 MJ: Counsel?”

 CDC: Yes, your honor, completeness and excited utterance. 

 MJ: No. Sustained. 
JNBAPTISTE—ARMY 20121113

4

 CDC: As to completeness, Your Honor. I want to make sure I 

am being clear. Counsel elicited an entire exchange and omitted 

one sentence. 

MJ: Did the accused say anything during his exchange under 

direct? I didn’t catch that he did. (emphasis added)

CDC: Your Honor, just to be fair, and if I’m incorrect you 

can add things. What was said was “Did you confront him?” 

“Yes.” “You were upset?” “Yes.” “You had a conversation 

about it?” And then he moved right past his response. He 

didn’t elicit it. 

After hearing arguments from both the defense and prosecution outside the 

presence of the panel, the military judge did not allow the defense to elicit the 

appellant’s denial when confronted by DH’s mother about her allegations. The 

military judge did, however, craft and provide the following instruction to the panel:

The testimony when the trial counsel was on direct 

examination may have left you with the impression that 

when the witness confronted the accused about whether or 

not he had touched [DH] that the accused either said 

nothing or failed to deny the accusation when one would 

normally expect such a denial. That’s not the testimony 

and you should not consider that to be the case.

When asked by the military judge if that curative instruction was adequate, civilian 

defense counsel answered, “Yes, Your Honor.” 

LAW AND DISCUSSION

“We review a military judge’s evidentiary rulings for an abuse of discretion.”

United States v. Gilbride, 56 M.J. 428, 430 (C.A.A.F. 2002) (citing United States v.

Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)). “A military judge commits an abuse of 

discretion by making findings of fact that are clearly erroneous or reaching 

conclusions of law that are incorrect.” Id. (citation omitted). “The abuse of 

discretion standard is a strict one, calling for more than a mere difference of

opinion. The challenged action must be arbitrary, fanciful, clearly unreasonable, or 

clearly erroneous.” United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010) 

(citations omitted) (internal quotation marks omitted). 

Military Rule of Evidence [hereinafter Mil. R. Evid.] 304(h)(2) provides: “If 

only part of an alleged admission or confession is introduced against the accused, 
JNBAPTISTE—ARMY 20121113

5

the defense, by cross-examination or otherwise, may introduce the remaining 

portions of the statement.” 2 

The rule of completeness has two purposes. The first is to ensure “that the 

court not be misled because portions of a statement are taken out of context” and the 

second is to avoid “the danger that an out-of-context statement may create such 

prejudice that it is impossible to repair by a subsequent presentation of additional 

material.” Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171-72 n.14 (1988) 

(emphasis added) (describing the common law rule of completeness); see also

United States v. Benton, 54 M.J. 717 (Army Ct. Crim. App. 2001)(“Mil. R. Evid. 

304(h)(2) is, manifestly, a rule of admissibility.”), aff'd, 57 M.J. 24 (C.A.A.F. 

2002); United States v. Rodriguez, 56 M.J. 336, 339-42 (C.A.A.F. 2002) (discussing 

both rules of completeness in the Military Rules of Evidence: Mil. R. Evid. 106 and 

Mil. R. Evid. 304(h)(2)). 

Once the government introduces a portion of an accused's statement, t he rule 

“permits the defense to introduce the remainder of a statement to the extent that the 

remaining matter is part of the confession or admission or otherwise is explanatory 

of or in any way relevant to the confession or admission, even if such remaining 

portions would otherwise constitute inadmissible hearsay.” Rodriguez, 56 M.J. at

342. The rule requires a case-by-case determination as to whether a series of 

statements should be treated as part of the original confession or admission, or as a 

separate transaction or course of action for purposes of the rule. Id. (emphasis 

added) 

In this case, we reject the government’s concession that a “rule of 

completeness” error occurred. We find Mil.R.Evid. 304(h)(2) inapplicable under 

these circumstances. We do not agree there was a statement by appellant before the 

court which required clarity or completion. The prosecution was careful to not elicit 

what words, if any, appellant may have uttered to DH’s mother. There is no 

“remaining portion” of appellant’s statement or confession to be completed. To the 

contrary, the only reason the evidence that the conversation took place at all was to 

reveal the events that occurred as a result of the conversation. 

We further reject the government’s concession and expansion of the rule of 

completeness that an inappropriate “inference of admission by silence” was created 

by not allowing the witness to testify to appellant’s disavowal of the accusations. 

One might draw any number of inferences regarding what appellant did or did not 

say in response to being asked if he touched DH. Appellant could have denied the 

 

2

The relevant rule is now Mil. R. Evid. 304(h). See Exec. Order 13,643 78 Fed. 

Reg. 29,565 (May 21, 2013). The text of the rule has not changed.
JNBAPTISTE—ARMY 20121113

6

allegation, confessed, or remained silent. No single inference bears any more weight 

than others here. The military judge’s instruction here, however, precluded the 

panel from drawing the inference that appellant failed to deny the accusation or 

otherwise stayed silent. See United States v. Collier, 67 M.J. 347, 355 (C.A.A.F. 

2009) (“Members are presumed to follow a military judge’s instructions to consider 

evidence for a proper purpose . . .”). 

Rule 304(h)(2) is designed to protect an accused from the prosecution's 

misleading use of excerpts of admissions or confessions. It does not permit an 

accused to justify the introduction of otherwise inadmissible self-serving hearsay. 

“The rule of completeness is neither a sword which the accused might introduce 

evidence to avoid the crucible of cross-examination, nor a shield behind which the 

true nature of an accused’s admissions may be hidden.” United States v. Foisey, 69 

M.J. 562, 567 (N.M. Ct. Crim. App. 2010). Here, introducing this evidence under 

the rule of completeness would permit appellant to trumpet his repudiation before 

the members while conveniently avoiding the crucible of cross-examination. 

In United States v. Harvey, 8 U.S.C.M.A. 538, 25 C.M.R. 42 (1957), our 

superior court emphasized the fairness component of the rule of completeness. “It 

would be manifestly unfair to an accused to permit the prosecution to pick out the 

incriminating words in the statement or discussion and put them in evidence while at 

the same time excluding the remainder of the statement or conversation, in which the 

accused seeks to explain the incriminating passages.” Id. at 546, 25 C.M.R. at 50. 

In our view, fairness did not require that the military judge allow the defense to 

admit evidence of appellant's denial in this case. The military judge had a sound 

basis to refuse admission of appellant’s denial under this evidentiary rule. 3

 

3

Similarly, in Rodriguez, our superior court stated, “the defense sought to introduce 

appellant's sixth and seventh statements as the basis for contending that his wife's 

killing was accidental. The Government's trial strategy, which did not involve 

introduction of those statements as part of its case-in-chief, thwarted that plan. As a 

result, the defense had to choose between putting appellant on the stand, which 

would have subjected him ‘to the crucible of cross-examination,’ United States v. 

Stark, 24 M.J. 381, 385 (C.M.A. 1987), or forgoing use of the statements. The rule

of completeness is an evidentiary rule designed to promote fairness by precluding 

unfair omissions, not a rule intended to allow an accused to avoid the ‘crucible of 

cross-examination.’” 56 M.J. at 342-43 (citations omitted). 
JNBAPTISTE—ARMY 20121113

7

Harmless Error

Even if we had found the military judge erred in refusing to admit appellant’s 

refutation into evidence, thereby creating a “false impression that appellant 

remained silent,” we find it to be harmless. 

Because the ruling did not deprive the appellant of a defense, the e rror was 

not of constitutional dimensions. See United States v. Garcia, 44 M.J. 27, 31

(C.A.A.F. 1996) (“To establish constitutional error, exclusion of material or vital 

defense evidence must usually be shown.”) (citations omitted). The test for nonconstitutional error is “‘whether the error itself had [a] substantial influence ’” on the 

findings. United States v. Armstrong, 53 M.J. 76, 81 (C.A.A.F. 2000) (citations 

omitted). We “evaluate prejudice from an erroneous evidentiary ruling by weighing: 

(1) the strength of the Government's case, (2) the strength of the defense case, (3) 

the materiality of the evidence in question, and (4) the quality of the evidence in 

question.” United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999) (citing United 

States v. Weeks, 20 M.J. 22, 25 (C.M.A. 1985)). This test is used for erroneous 

exclusion of defense evidence. Id. (citations omitted). 

The government's case regarding the anal sodomy incidents and the indecent 

conduct related to the pornography was strong. The 11-year-old DH tested positive 

for genital and anal herpes, which corroborated her testimony against appellant. 

Appellant also tested positive for herpes. DH’s testimony regarding appellant’s use 

of lubricant was corroborated by her mother’s testimony about keeping lubricant in 

her nightstand. Had appellant’s denial to his spouse been admitted, the relative 

strength of the government's case would not have been significantly altered. The 

defense attacked the credibility of DH by noting prior inconsistent statements 

regarding the timing and location of the offenses and posited DH contracted the 

herpes virus from a source other than appellant. Further, nothing prevented 

appellant from presenting his defense that the abuse had not occurred. We can say 

“with fair assurance” that the absence of appellant’s denial did not “substantially 

sway[]” the panel. Kotteakos v. United States, 328 U.S. 750, 765 (1946). 

Lastly, we also take notice of the military judge’s curative instruction. The 

defense complains that the panel may have drawn the inference that appellant 

remained silent in the face of DH’s mother’s questions and that silence should be 

interpreted as a statement which needs completion. The military judge instructed the 

panel they should not consider that to be the case because it was not the evidence 

before them. A panel is presumed to follow a military judge’s instructions. Collier, 

67 M.J. at 355 

Having no doubts about the impact of the excluded evidence on the results of 

trial, we conclude appellant suffered no material prejudice to his substantial rights

from the exclusion of evidence. 
JNBAPTISTE—ARMY 20121113

8

CONCLUSION

Upon consideration of the entire record, the findings of guilty and the 

sentence as approved by the convening authority are AFFIRMED.

Senior Judge TOZZI and Judge CELTNIEKS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

MALCOLM H. SQUIRES, JR.

FOR THE COURT: