## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before HAIGHT, PENLAND, and WEIS 1 Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class CORLEY Z. BLACK United States Army, Appellant

ARMY 20140010

Defense Language Institute Foreign Language Center Douglas K. Watkin s, Military Judge
Lieutenant Colonel Tiernan Do lan, Staff J udge Advocate

For Appellant: Colone l Kevin Boyle, JA; Major Yoland a McCray Jones, JA; Captain Patrick A. Crocker, JA (on brief).

For Appellee: Colonel Mark H. Sydenham , JA; Major A.G. Courie III, JA; Major Daniel D. Derner, JA; Captain Na than S. Mammen, JA (on brief).

29 April 2016

---------------------------------- MEMORANDUM OPINION

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

WEIS, Judge:

A military judge sitting as a general court-martial convicted appellant, contrary to his plea, of one specification of sexual assault in violation of Article 120(b)(3), Uniform Code of Military Justice, 10 U.S.C. § 920 (b)(3) (2012) [hereinafter UCMJ]. The convening auth ority approved the adju dged sentence of a dishonorable discharge and confinement for two years. 2

1 Judge WEIS took final action in th is case while on active duty.

2 The military judge credited appellant wi th three days of pr etrial confinement
credit.BLACK — ARMY 20140010

2 Appellant’s case is before this court for review pursuant to Article 66, UCMJ. Of appellant’s two assignmen ts of error, the followin g merits discussion but not
relief:

THE MILITARY JUDGE ERRED BY OVERRULING
DEFENSE HEARSAY OBJECTIONS BASED ON AN
“OUTCRY” EXCEPTION THAT IS NOT CURRENTLY
RECOGNIZED IN MILITARY LAW.

We conclude the military judge abused his discretion in allowing certain statements by the victim into evidence, ov er defense objection, by applying an “outcry” exception in dependent of Military Rule of Evidence [h ereinafter Mil. R. Evid.] 801 or 803. 3

However, we further conclude this er ror was harmless in light of multiple
similar statements of the vic tim received in evidence pursuant to a Mil. R. Evid. 803(2) “excited utterance” exception to the hearsay rule.

I. FACTS

In the early evening of 1 March 2013, the victim, Specialist (SPC) AL, and
her best friend and ro ommate, Specialist SR, went to a restaurant/bar to meet with appellant and his frie nd, Private First Class (PFC) JJ, prior to a party planned for that evening. Everyone, with the exceptio n of Specialist SR, c onsumed alcohol at
the establishment.

Specialist SR, SPC AL, a nd PFC JJ were aware that appellant had previously reserved and paid fo r a nearby hotel room for the plan ned party. SPC AL was aware that “several people” had ta lked about a possible party at the hotel r oom and that throughout the evening PFC JJ was “desperately” trying to get others to come to the hotel room for a party.

Specialist SR, however, had no plans to go to the hotel room party. Around 2300, Specialist SR left the restaurant/bar because she was underage to consume
alcohol and was bo red. The appellant, SPC AL, and PFC JJ su bsequently left the restaurant/bar and went to a CVS pharma cy store where SPC AL purchased alcohol for the planned party. The three proceeded to the hotel room a nd all consumed more
alcohol. All th ree still held expectat ions of others showin g up for the party; however, despite the efforts of all parties involved, no other persons ever appeared
at the hotel room. Upon the suggestion of SPC AL, the three went to a nearby dance club where they consumed mo re alcohol. Acco rding to PFC JJ, appellant and SPC

3 The matter personally raised by appellan t pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982 ), is without merit.BLACK — ARMY 20140010

3 AL were “drunk” when they left the dan ce club. SPC AL was stumbling and needed assistance getting back to the hotel room.

Appellant and PFC JJ orde red some food through room service. SPC AL felt sick, thought she might vomit, and fell asleep on a couch before the food arrived. Appellant and PFC JJ continue d to drink after ordering room service; SPC AL did not consume any alcohol the remainder of the ev ening. PFC JJ co uld not wake up
SPC AL when the room service food arrive d and he never saw SPC AL awake during the remainder of the evening. SPC AL was fully clothe d and sleeping on the couch, and appellant was still awake, when PFC JJ eventually fell asleep.

SPC AL testified that she awoke feel ing the weight of appellant’s body on
her. Her breasts were exposed and her tights were down around one of her legs. She fell back asleep. When she awoke a second time, appellant’s penis was inside her. She tried to push appellant off of her. She then told appellan t to stop and he stopped, pulled up his trousers, and apologized . At that time, PF C JJ had passed out
on the floor. SPC AL kicked PFC JJ bu t he did not wake up. SPC AL tried to stay awake but she again fell back asleep.

In the early morning hou rs, SPC AL awoke and tele phoned Specialist SR and
stated that she “had been ra ped” by appellant. PFC JJ aw oke to find SPC AL on the telephone. SPC AL told PFC JJ that she had awoken with appellant’s “fingers inside her” and that appellant had “put his peni s inside her.” Soon thereafter, someone
arrived to take SPC AL from the hotel to the barracks.

II. LAW

A military judge’s decision to admit or exclude eviden ce is reviewed under an
abuse of discretion standard. United States v. White , 69 M.J. 236, 239 (C.A.A.F. 2010); United States v. Cucuzzella , 66 M.J. 57, 59 (C.A.A.F. 2008); United States v.
Roberson , 65 M.J. 43, 45 (C.A.A.F. 2007). A military judge ab uses his or her
discretion when he or she is incorrect abou t the applicable law or improperly applies
the law. United States v. Roberts , 59 M.J. 323, 326 (C.A.A.F 2004).

The abuse of discre tion standard is a strict one, calling for more than a mere difference of opin ion. The challenged action must be “arbitrary, fanciful, clearly unreasonable, or cl early erroneous.” White , 69 M.J. at 239 (int ernal quotation marks and citation omitted).

If this court finds an abuse of discretion, it then reviews the prejudicial effect of the ruling de novo. Prej udice from an erroneous evid entiary ruling is evaluated by weighing “(1) the strength of the Government’s case, (2) the stre ngth of the defense case, (3) the material ity of the evidence in ques tion, and (4) the quality of the evidence in question.” Roberson , 65 M.J. at 47-48 (quotation marks and citations omitted).BLACK — ARMY 20140010

4 III. DISCUSSION

A. Statement of Victim to Specialist SR Admitted as “Outcry Evidence”

At trial, Specialist SR test ified as to her observations of and interactions with SPC AL the morning of the incident. Specialist SR te stified that SPC AL called her early that morning “with a shakiness in her voice” and that “she sounded shaken . . . was crying a little b it, and . . . sounde d kind of angry as well.” Specialist SR testified that SPC AL stated during the telephone conversation that “she had been raped.” Defense counsel’s he arsay objection to this statement was initially sustained by the military judge.

Specialist SR next testified that, in response to the te lephone conversation,
she waited for SPC AL to co me to their barracks room. As a result, trial counsel argued that the telephonic statement by SPC AL was admissible as an “effect on the listener” exception to the hearsay rule . Defense counsel renewed the hearsay objection. The military judge observed that the “effect on the listener [argument] is extremely weak” but sua sponte concluded that the statement was “admissible as outcry evidence.”

Specialist SR further testified that, after the telephone c onversation, SPC AL came to their barracks room “crying and sh aking,” “angry and scared,” and stated that she “felt really dirty, and she just wanted to take a bath.” Specialist SR
testified that she sat over SPC AL in the bathtub and “rub bed her head while she just talked about what happened.” When trial counsel asked Sp ecialist SR what SPC AL had told her about the nigh t before, defense co unsel objected on hearsay grounds:

Q: And what happened next?

A: Um, she just sat in the bathtub and cried. I sat over her, and I rubbed her head while she just talked about what happened.

Q: And what did she say?

A: She said that she had woken----

DC: Objection.

MJ: Basis?

DC: Hearsay.

MJ: Government?BLACK — ARMY 20140010

5 ATC: It’s continuing under 803(3) . It’s an exci ted utterance in
accordance with th e court’s ruling.

MJ: I didn’t rule that it was an ex cited utterance.

ATC: Admissible under--as outcry.

. . . .

MJ: All right. You want to be heard, Defense?

DC: Well, I don’t beli eve a proper foundation has been laid if the government is goi ng to offer under that basi s, so I would renew my objection if asked that.

MJ: Well which basis?

DC: Um, on the excite d utterance basis.

ATC: The government wi thdraws its response as it relates to 803(3).

The record reveals that , after this coll oquy between the mi litary judge and counsel, the witness, Specialist SR, did not answer the questi on of what SPC AL
stated while in the bathtub. Thus, the sole statement to Specialist SR received in evidence as “outcry eviden ce” over defense objection was the telephonic statement by SPC AL to Specialist SR th at “she had been raped.”

B. Statements of Victim to PFC JJ Admitted as “Outcry Evidence”

The Article 32, UCMJ, he aring testimony of PFC JJ , which was read into evidence, reflects that, the morning of the incident, SPC AL told him that appellant
had “touched her” and that “s he was woken up to Black’s fingers inside of her, and
that it was not welcom ed . . . .” Defense counsel objected on hearsay grounds. The military judge overruled the objection by concluding th e statements were “proper outcry evidence.” These were the only statements by SPC AL to PFC JJ received in evidence as “outcry evidence ” over defense objection.

C. “Outcry” Evidence

Appellant urges, as an assignment of error, that the “military judge erred by allowing numerous hearsay statements in to evidence over defense objections by applying an ‘outcry’ exception indepe ndent of Mil. R. Evid. 801 and 803.”

As just outlined, the mili tary judge admitte d in evidence the following two statements of SPC AL, over defense objection, pursuant to an “outcry” exception:BLACK — ARMY 20140010

6 (1) telephonic statement to Specialist SR that she “had be en raped”; and (2) statements to PFC JJ that appellant “had to uched her” and that “she had woken up to [appellant’s] fingers inside her, and that it was not welcomed . . . .”

In so ruling, the record clearly reflects that the military judge described the “outcry” exception in precis ely the terms used in the 1969 revised edition of the Manual for Courts Martial [hereinafter MCM , 1969]. Paragrap h 142c (“Fresh complaint and lack of fr esh complaint”) of the MCM , 1969 provided:

In a prosecutio n for a sexual offense in which an alleged victim of either sex has testified that consent was lacking, evidence that the alleged vict im made a complaint of the
offense within a reasonable time after its co mmission is admissible for the purpose of corroborating the testimony of the victim, and this is so whether or not l ack of consent
is an element of th e offense and even if the credibility of
the victim has not be en directly attacked. This evidence is to be restricted to proof that the complaint, including the
identification of the offender, was made. A description of
the details of the offense given during the course of making the complaint is not admissible u nder this rule. However, a description of the details of the offense related during the course of maki ng the complaint may be
received in evidence if ad missible as evidence of a
consistent statement for th e purpose of corroboration
under 153 a , or if admissible u nder the spontaneous exclamation (142 b ), or any other, exception to the hearsay
rule.

This “outcry” exception does not appear in the current Manual for CourtsMartial (i.e., the 2012 edition ) or any of its recent updates or amendments

. Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM , 2012]. However, defense and government appellate counsel agree that th e term “outcry” as explained by the military judge is synonym ous with the description of “fresh complaint” in the
current version of the MCM

.

As noted in United States v. Smith , “[A]n express exception for fresh complaint has been deleted as being unnecessary.” 14 M.J. 845, 846-47 (A.C.M.R. 1982) (quoting Analysis of Military Rule of Evidence 412, 8 M.J. at CLVII). Nonetheless, “fresh complaint” evidence remains viable in military jurisprudence
under certain circumstances. Evidence of fresh complaint, which is either nonhearsay under Mil. R. Evid. 80 1 or fits within an exception to the hearsay rule under Mil. R. Evid. 803, is re levant and admissible. Smith , 14 M.J. at 847; MCM , 2012, App. 22, Analysis of the Milit ary Rules of Evidence, A22-36. Specifical ly, a “fresh complaint” by a victim of a sexual offense may, dependi ng upon the circumstances,BLACK — ARMY 20140010

7 fall within a hearsay except ion such as present sense impression, excited utterance, or then-existing mental, emot ional or physical condition. MCM , 2012, App. 22, Analysis of the Military Rules of Evidence, A22-55. Howeve r, “[r]eference to ‘fresh complaint’ should be avoided as co nfusing and unduly restrictive.” Smith , 14 M.J.
at 847 n.1.

In the instant case, we conclude that the military judge abused his discretion in allowing the statements at issue into evidence, over defense hearsay objection, through application of an “outcry evidence” exception independent of any analysis
of Mil. R. Evi d. 801 or 803. See United States v. Swift , ARMY 20100196, 2016 CCA LEXIS 26, at *7-9 (Army Ct. Crim. App. 21 Jan. 2 016) (mem. op.).

D. No Prejudice Established

Having determined an abuse of discretion as to evidentiary rulings by the military judge, th is court next reviews de novo any prejudicial effect of the erroneous rulings. United States v. Roberson , 65 M.J. 43, 47-48 (C.A.A.F. 2007). We find no prejudice in that certain similar statements made by SPC AL to PFC JJ were subsequently properly ad mitted in evidence by the military judge under an “excited utterance” hearsay exception and not as “outcry evidence.” Accordingly,
evidence of SPC AL’s outcries were not on ly cumulative with her in-court account of what transpired but also with her admissible “excit ed utterances” regarding the
incident.

Although defense and government appellate c ounsel both address any continuing viability of the “outcry exception” in milita ry jurisprudence, neither acknowledges that certain statements made by SPC AL to PFC JJ were admitted in evidence, over defense hearsay objectio n, pursuant to a Mil. R. Evid. 803(2) “excited utterance” exception to the hearsay rule.

1. Victim Statements to PFC JJ—Excited Utterances

The trial colloquy reveals that several statements made by SPC AL to PFC JJ initially admitted in evidence by the milita ry judge as “outcry” were later admitted
under an “excited utteranc e” hearsay exception:

A: [SPC AL] said that [appel lant] put his penis in her

.

Q: Did she say they had sex?

A. Um, I don’t— I don’t— I know for a fact that she said that he put hi s penis in her

.

Q: She say that he raped her ?BLACK — ARMY 20140010

8 A: Um, I don’t remember. I really don’t remember. That was at that point, the way th at she described the story, definitely it didn’t need to be said that that’s what she felt happened.

Q: Describe that for me, I don’t understand.

DC: Again, Your Honor. Same objection, hearsay. I think it has now gone beyond outcry to specifics of the
outcry statement.

MJ: Government?

ATC: Your Honor, within the response he states the emotional stress of the event, and that the individual--that [SPC AL] is under th e stress of that ev ent and having an immediate response to it in her explanation of what was going on.

MJ: Okay, and that’s relevant to me, how?

ATC: Relevant as to----

MJ: To show her em otional state? Is that what you’re saying, or for a hearsay exception?

ATC: To establish the emotio nal state that therefore goes
to--is circumstantial evidence as to----

MJ: As circumstantial eviden ce that something happened?

ATC: Yes, Your Honor.

MJ: See you’re confusing me because there was a hearsay objection.

ATC: My apologies, Your Honor. Normally you would have a foundation prio r to the excited utterance, but this-- the line of questioning kind of builds.

MJ: Okay, that’s why--that’ s what I’m asking about. If this is for excite d utterance or just circumstantial evidence of her emotional st ate to show that something happened. Two different things.BLACK — ARMY 20140010

9 ATC: I know they’re two separate things. I’ll answer the hearsay exception. I believe we have fallen with the
excited utterance , but also the— coul d serve as a purpose
to both.

MJ: Well, okay. I’ll listen to more to see if we get to a foundation for excited utterance.

ATC: Yes, Your Honor.

Q: Describe that for me, I don’t understand.

A. Um, the way that she- -she kept saying that, um, it was
unwanted and that she didn’t want it and she was very torn up, she was crying. A nd but the way--the story itself that she told, I remember-- I don’t remember if she said it or not, but that was what I--that’s what I thought she was saying. That’s what I--that’s the story she told , was that she had been raped by Black. But I don’t know she actually said that.

MJ: All right. So Defense, probably a better foundation for an excited utterance, so I’m overruling your objection

. But the witness’ personal knowledge seems to be----

DC: I would agree, Your Honor. It seems to be that he is assuming stuff based on--not based on his memory.

MJ: Well, assuming some st uff and not sure about his perceptions perhaps. I guess if that ma kes you feel better,
that’s how I’m consider ing it. Government?

ATC: I think, Your Honor----

MJ: I guess what I’ m saying, it goes to the weight. But go ahead, government.

ATC: Yes, Your Honor. As the responses indicated earlier, that were clear, that “I know that sh e said he put his penis into her” and then in his explanation he says that
it’s unwanted. That she’s under the stre ss of the event, etc. So those subsequent statements, although he’s hedging, he was very clear in the beginning. And taking the testimony in its totality I think the testimony is clear.BLACK — ARMY 20140010

10 MJ: Well, I just ruled in your favor, Government.

(emphasis added).

Moreover, another trial colloquy reveal s that additional st atements made by
SPC AL to PFC JJ were admitted in evidence under the “excited utterance” exception to the hear say rule and not as “outcry” evidence:

Q: Do you remember how [SPC AL] woke you up?

A: It was, um, it had to be more of a noise that she made.
I don’t know if it was her ta lking or the door was shut. Something woke me up and she was active inside the

room.

Q: She didn’t come over and shake you?

A: No.

Q: Just her acti on in the room wa s enough to wake you up?

A: Yes.

Q: And then that’s when she --well, what di d she first tell you?

DC: Objection, hearsay.

MJ: Government?

ATC: This is an excited utte rance, Your Honor, in accordance with pr ior testimony. F oundation has already
been laid.

MJ: Is this basically the same statement that I already
ruled on?

ATC: Yes, Your Honor.

MJ: Defense, is there any differ ence here, or are you just noting your objection for the record?

DC: There’s no difference in the contents, and I am noting the objection for the record.BLACK — ARMY 20140010

11 MJ: Overruled.

A: That her--she was going to leave and to watch my
friend Black around women.

Q: And at that po int [what] would you take that to mean?

A: Um, I had no idea what th at meant at first. I thought maybe he had, maybe he had said someth ing. I in no way thought that this wo uld be the issue. I thought maybe he said something or did someth ing maybe--that maybe kind of creeped her out or something like that.

Q: So I guess that though she didn’t indicate anything
sexual assault oriented ha ppen[ed] initially, right?

A: No, not with that first statement. No.

Q: What kind of inspired her to go on and make a second

statement?

A: Um, she was really shaken up and I thi nk that I asked her to explain or as ked what he did. And that’s when she
said that he had touched he r and she started talking about that. And at some point sh e sat down on the bed and told
me that--that he ha d entered her vagina.

Q: Okay. And I think you said actually that first time she told you she though t it was fingers?

A: Yes.

Q: Okay, was she clear ab out that at that point?

A: Um, she said that there was a, um, a big wet spot on
the couch and that--I don’t reme mber if she said that his fingers were in her, or had b een in her. I don’t remember
how she worded it. And then, but quickl y after saying that
she said--she sat down and she told me that she had--she said,

DC: I’m going to object to that next statement as hearsay.

MJ: Government?BLACK — ARMY 20140010

12 ATC : This is an ongoing exci ted utterance, Your Honor.

MJ: Overruled.

A: “That’s not all. He put it in me.” And I asked her what it was, and she said “his penis.”

Q: Okay, what did you do at that poin t? I know you said
you were upset.

A: Yeah, I was upset. I was very hazy. I sat up in bed. I--my first thought was towards her and helping her out. I was upset at Black. I don’t remember what I said in regards to Black. I don’t reme mber really what I said to offer help to her. All of that is specul ation on my part.
But I do remember that I was very concerned for her and angry at the situation.

(emphasis added).

The statements, admitted in evidence under an “excited utterance” hearsay exception, are substantially similar, if not the same, statements of SPC AL erroneously admitted under the “outcry excep tion.” Appellate de fense counsel does not argue that the military j udge erred in applying a Mil. R. Evid. 803(2) “excited utterance” hearsay exception to the statem ents. Moreover, we find no abuse of discretion by the military judge in this rega rd. Thus, we conclude that any error by the trial judge in admitting similar statem ents under the “outcry” exception to be
harmless error.

2. Victim Statement to Specialist SR

Although we find the military judg e erred in admitti ng the telephonic
statement of SPC AL that she “had been ra ped” in applying an “outcry” exception independent of an analysis of the Military Rules of Evidence, we conclude such error
was harmless.

SPC AL’s telephonic statement to Spec ialist SR that she “had been raped” may have been admiss ible under alternativ e viable theories. 4 The statement may

4 See, e.g., United States v. Robinson , 58 M.J. 429, 433 (C.A .A.F. 2003) (“military judge’s error was harmless, because the mi litary judge reached the correct result,
albeit for the wrong reason”); United States v. Kindle , 45 M.J. 284, 288 (C.A.A.F.BLACK — ARMY 20140010

13 have been admissible under the “excited ut terance” exception to the hearsay rule. Mil. R. Evid. 803(2). The statement ma y have been admissib le as non-hearsay offered to rebut an express or implied charge of recent fabrication or improper
influence or motive. Mil. R. Evid. 801(d)(1)(B); MCM , 2012, App. 22, Analysis of the Military Rules of Evidence, A22-53; see also State v. Graham , 815 N.W.2d 293, 302 (S.D. 2012) (assertion in op ening statement sufficient to permit admission of prior consistent statement to rebut a charge of rece nt fabrication); United States v. Morgan , 31 M.J. 43, 46 (C.M.A. 19 90) (prior consistent statement admissible under Mil. R. Evid. 801(d)(1)(B) where defens e counsel “raised two separate theories through his cross-examination of moth er and child and his argument”). Additionally, the statement may have been used to evaluate the witn ess’ credibility, and not as substantive evidence, foll owing impeachment of the witness. United
States v. Coleman , 72 M.J. 184, 188 (C .A.A.F. 2013); see also United States v.
Simonelli , 237 F.3d 19, 27 (1 st Cir. 2001).

However, because the military judge admitted the statement as “outcry” evidence, the record was not sufficiently deve loped as to any othe r possible theories
as to admission of the statement. Thus , we are precluded fro m determining whether a sufficient alternative evidentiary founda tion could have been established with respect to admission of the statement. For instance, we cannot conclude whether SPC AL’s statement to Spec ialist SR was made “while the declarant was under the stress of excitement cause by the event” or if the prior consistent statement was “made before the alleged recent fabric ation or improper influence or motive
occurred.” Mil. R. Evid. 803(2); United States v. McCaskey , 30 M.J. 188, 192 (C.M.A. 1990); Mil. R. Evid. 801(d)(1)(B); see also Tome v. United States , 513 U.S. 150 (1995); Morgan , 31 M.J. 46.

Nonetheless, even assumi ng that SPC AL’s telephonic statement to Specialist
SR was not admissible under any rule or theory, we dete rmine the admission of the
statement was harmless error in that the statement was cumulative with SPC AL’s
in-court detailed tes timony and also consiste nt with the properly admitted “excited utterances” made by SPC AL to PFC JJ minutes before the telephonic statement to Specialist SR.

1996) (Gierke, J., concurring) (“[T]he military judge was correct in excluding . . . testimony as residual hearsa y, but he was labo ring under an inco rrect view of the law. In short, he ruled correctly for the wrong reasons.”); United States v. Copeland , 21 C.M.R. 838, 863 (A.F .B.R. 1956) (“However, though the reason for the ruling was incorrect, the ruling itself was correct. . . . [T]he fact that the reasoning was wrong is of no consequence, for it is the judicial action and not judicial reason that determines the co rrectness of the tr ial proceedings.”); Robertson

v. State , 829 So. 2d 901, 90 6-907 (Fla. 2002) (E ven though a trial court’s ruling is based on improper reasoning, th e ruling will be upheld if there is any theory or principal of law in the record which would support the ruling.).BLACK — ARMY 20140010

14 IV. CONCLUSION

Upon consideration of the entire record, the finding of guilty and the sentence

are AFFIRMED.

Senior Judge HAIGHT and Judge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: