UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

TOZZI, CAMPANELLA, and CELTNIEKS 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist JUSTIN P. SWIFT 

United States Army, Appellant 

ARMY 20100196 

Headquarters, Fort Bliss 

Michael J. Hargis, Military Judge (trial) 

Timothy P. Hayes Jr., Military Judge (rehearing) 

Colonel Michael J. Benjamin, Staff Judge Advocate (trial) 

Colonel Karen H. Carlisle, Staff Judge Advocate (rehearing) 

For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Jonathan F. Potter, JA; 

Major Amy E. Nieman, JA (on brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Captain Jihan Walker, JA (on brief). 

22 December 2015 

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MEMORANDUM OPINION ON FURTHER REVIEW 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge: 

 On 10 March 2010, a panel consisting of officer and enlisted members sitting 

as a general court-martial convicted appellant, contrary to his pleas, of two 

specifications of indecent acts with a child in violation of Article 134, Uniform 

Code of Military Justice, 10 U.S.C. § 934 (2000) [hereinafter UCMJ]. The panel 

sentenced appellant to a dishonorable discharge, fourteen years confinement, total 

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

sentence as adjudged. 

On 29 November 2012, this court set aside the findings and sentence and 

dismissed the specifications without prejudice because the government failed to 

allege the terminal element for both Article 134 offenses. A new trial was 

authorized by this court. 
SWIFT—ARMY 20100196 

2

On 22 October 2014, a military judge sitting as a general court-martial 

convicted appellant, contrary to his pleas, of two specifications of indecent acts with 

a child in violation of Article 134, UCMJ. The military judge sentenced appellant to 

a dishonorable discharge, eleven years confinement, and reduction to the grade of 

E-1. The military judge credited appellant with 1,142 days confinement credit. The 

convening authority approved the adjudged sentence and the confinement credit. 

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

raises one assignment of error which warrants discussion but no relief. 

BACKGROUND 

Appellant was convicted of sexually assaulting his natural daughter, KS. On 

one occasion, appellant rubbed his four-year-old daughter’s vagina over her clothing 

while they were cleaning the inside of the family van. On another occasion, 

appellant massaged his daughter’s vagina while she was lying in bed with her 

mother. KS made reports to her social worker and mental health counselor for the 

purpose of seeking medical treatment including describing an occasion when KS 

straddled appellant on the couch as he slept and appellant “peed” when he awoke; 

KS told her counselor the appellant had his hand down his pants when this occurred 

and that she had to clean it up. 

Eventually, when KS was eight years old, she made a disclosure to her third 

grade teacher, Ms. A, indicating that her father touched her inappropriately. At the 

time of appellant’s rehearing, KS was fifteen years old and could no longer recall 

the name of her third grade teacher or making the disclosure. The government 

proffered the teacher’s testimony to present KS’s disclosure as follows: “[C]an I tell 

you a secret, do you know why my daddy is in jail? He is in jail because he abused 

me, but I am supposed to say no.” 

The defense objected to the admission of this statement as hearsay. The 

military judge rejected the government’s argument that the statement was admissible 

under the residual hearsay exception, Military Rule of Evidence [hereinafter Mil. R. 

Evid.] 807. The government then attempted to admit the victim’s statement for a 

non-hearsay purpose - effect on the listener and a prior consistent statement. 

The military judge prevented the government from introducing KS’s full 

statement to Ms. A. The military judge, however, ruled as follows: 

I’m going to allow only the fact that [Ms. A] can testify 

as to whether or not [KS] made a complaint about a sexual 

assault and if she identified a certain person as the perpetrator 

under the doctrine of the victim’s outcry evidence. So, [Ms. 

A] can limit her testimony to the fact that whether or not [KS] 
SWIFT—ARMY 20100196 

3

made an outcry about a sexual assault, who she identified, and 

then her actions as a result of that. 

Ms. A then testified that KS disclosed she was sexually assaulted by 

appellant. Ms. A also testified she notified the school counselor and filed a report 

with Child Protective Services (CPS). 

Appellant now argues the military judge’s categorization of KS’s statement 

to her teacher as victim “outcry” evidence, for which no hearsay exception 

currently exists, is error. Appellant concludes that the military judge’s failure to 

properly classify KS’s statement as a hearsay exception within the Military Rules of 

Evidence materially prejudiced a substantial right of appellant. While we agree the 

military judge committed error by labeling the evidence as “outcry” evidence, we 

conclude the error was harmless. We find KS’s statement to Ms. A admissible for a 

non-hearsay purpose. However, we find that even if the statement was not 

admissible, appellant suffered no material prejudice to any of his substantial rights 

as a result of the military judge's error. 

LAW AND DISCUSSION 

 “We review the military judge’s ruling on the admissibility of evidence for a 

clear abuse of discretion.” United States v. Schlamer, 52 M.J. 80, 84 (1999) 

(quoting United States v. Johnson, 46 M.J. 8, 10 (1997)). “[A] military judge abuses 

his discretion if his findings of fact are clearly erroneous or conclusions of law are 

incorrect.” United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). In cases 

where we find a military judge erred when he admitted evidence, our inquiry does 

not end with the finding of error. Article 59 (a), UCMJ. “Error not amounting to a 

constitutional violation will be harmless if the factfinder was not influenced by it, or 

if the error had only a slight effect on the resolution of the issues of the case.” 

United States v. Muirhead, 51 M.J. 94, 97 (1999) (citation omitted). 

 The government concedes that the military judge’s use of the term “outcry” is 

synonymous with “fresh complaint.” See Manual for Courts-Martial, United States, 

1969 (Rev. ed.) [hereinafter MCM, 1969]. Under the early rule of hue-and-cry, it 

was necessary that there be a fresh complaint in order for the fact of the complaint 

to be admitted. 4 Wigmore, Evidence (3d ed.) § 1135(A)(1)(d). See also United 

States v. Sandoval, 18 M.J. 55, 61-62 (1984). Over time, this rule has transformed. 

 The evidentiary rules which applied to sexual offenses under MCM, 1969 and 

MCM, United States (1951 ed.) [hereinafter MCM, 1951], were very different from 

today’s Military Rules of Evidence. The MCM, 1969 and MCM, 1951 authorized the 

reception of evidence of “fresh complaint.” See para. 142c, MCM, 1969; para. 142c, 

MCM, 1951. Cases decided under the MCM, 1951 also recognized the relevance of 

an absence of evidence of fresh complaint entitling the accused to an instruction on 
SWIFT—ARMY 20100196 

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to lack of fresh complaint. See, e.g., United States v. Goodman, 33 C.M.R. 195 

(1963); United States v. Mantooth, 19 C.M.R. 377 (1955). The MCM, 1969 required 

that the complaint be made “within a reasonable time after” the sexual offense was 

allegedly committed, while its predecessor referred to a complaint “within a short 

time thereafter.” See para. 142c, MCM, 1969 and MCM, 1951. 

The MCM, 1969 stated that a fresh complaint “is admissible for the purpose of 

corroborating the testimony of the victim,” and not for the purpose of showing 

directly the truth of the matters stated in the complaint. See para. 142c, MCM, 1969. 

The theory of admissibility of a fresh complaint arose out of the outdated belief that 

it is “natural” to expect the victim of such a crime would complain of it. United 

States v. Sandoval, 18 M.J. 55, 63 (C.A.A.F. 1984). Since the fact of the complaint 

is admissible to corroborate the alleged victim, the victim must have been a witness. 

See DA Pamphlet 27-2, Analysis of Contents, MCM, United States, 1969, Revised 

edition, para. 142c. 

 When the corroboration requirement was deleted from the MCM, 1969, the 

hearsay exception for fresh complaint was also removed as unnecessary. See MCM, 

United States (2008 ed.) [hereinafter MCM, 2008], App. 22, Mil R. Evid. 412, p. 

A22-36. The notion of fresh complaint, however, was subsumed into other hearsay 

exceptions – not eliminated altogether.1

 Id. 

Based on the forgoing, we conclude, first, that the military judge 

inappropriately applied the outdated “victim outcry” principle. Nonetheless, we 

agree that a non-hearsay basis exists to allow the admission of the statement – 

namely, effect-on-the-listener. KS’s out-of-court statement is not barred by Mil. R. 

Evid. 802 because it was not offered for the truth of the matter asserted. Despite the 

military judge’s ruling on the out-of-date notion of “outcry doctrine,” the trial 

counsel specifically offered the victim’s statement as “effect on the listener” and as 

a “prior consistent statement.” The statement was properly offered to show why Ms. 

A contacted CPS and how the investigation ensued.2 

Assuming arguendo, the military judge erred and, it was inadmissible hearsay, 

we consider whether the military judge’s erroneous admission of Ms. A’s testimony 

caused material prejudice to appellant's substantial rights. We test for prejudice 

resulting from the erroneous admission of evidence by examining ‘“(1) the strength 

 

1

 [E]vidence of fresh complaint will be admissible under the Military Rule only to 

the extent that it is either not hearsay, see Rule 801(d)(1)(B), or fits within an 

exception to the hearsay rule. See subdivisions (1), (2), (3), (4), and (24) of Rule 

803.” See MCM, 2008, App. 22, Mil R. Evid. 803, p. A22-36. 

2

 The statement may also have been admitted as a prior consistent statement. The 

foundation for that, however, was not clearly articulated and developed on the 

record. 
SWIFT—ARMY 20100196 

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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. Durbin, 68 M.J. 271, 275 (C.A.A.F. 2010) (quoting United States v. Kerr, 

51 M.J. 401, 405 (C.A.A.F. 1999)). 

 Applying the first Kerr factor to the case before us, the government’s case 

was strong. Appellant admitted to sexual contact with his daughter on at least two 

occasions. He admitted that on one occasion while lying in bed with his wife and 

daughter, he rubbed KS’s vagina for ten to fifteen seconds, thinking it was his wife. 

KS testified appellant touched her on the vagina using a “massaging motion” on 

several occasions. In addition, KS made detailed child-like reports to her social 

worker and mental health care provider for the purpose of seeking medical 

treatment. 

Regarding the second factor, the defense’s case is markedly less substantial. 

Appellant’s statement that he mistakenly believed he was touching his wife’s vagina 

and not his seven year old daughter was implausible, considering his wife was 

considerably larger than KS at the time. Appellant’s excuse of sleep disorder was 

not borne out in evidence. While KS made a prior inconsistent statement recanting 

her story, she explained that she did so because she was scared. KS’s behavior was 

also supported by a government expert who offered expert opinion on child 

recantation. 

 

Third, as to the materiality of the testimony, it was not great. The statement 

was not detailed. It came later in time to disclosures KS made to others regarding 

appellant’s conduct, including KS’s disclosure to her social worker and therapist. 

Finally, the disclosure was not vital to the Government's case nor fatal to 

appellant's. The quality of Ms. A’s contribution to the Government's case was also 

not particularly significant. 

Assuming the military judge committed error in this case, and applying the 

Kerr test for prejudice, we conclude that appellant suffered no material prejudice to 

any of his substantial rights as a result of the military judge's error. 

CONCLUSION 

On consideration of the entire record and the submissions of the parties, the 

findings of guilty and the sentence are AFFIRMED. 

Senior Judge TOZZI and Judge CELTNIEKS concur. 
SWIFT—ARMY 20100196 

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FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: