## UNITED STATES ARMY COUR T 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., Mi litary Judge (rehearing) Colonel Michael J. Benjamin, Staff Judge Advocate (trial) Colonel Karen H. Carlisle, St aff Judge Advocate (rehearing)

For Appellant: Colone l Kevin Boyle, JA; Lieutenant Co lonel 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

---------------------------------------------------------------- MEMORANDUM OPINION ON FURTHER REVIEW

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

On 10 March 2010, a panel consisting of officer a nd enlisted members sitting as a general court-martial convicted appe llant, contrary to his pleas, of two specifications of indecent acts with a chil d in violation of Ar ticle 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (2000) [hereinafter UCMJ]. The panel sentenced appellant to a dishonorable disc harge, fourteen years confinement, total forfeitures, and reducti on to the grade of E-1. The convening au thority approved the sentence as adjudged.

On 29 November 2012, this court set aside the findings and sentence and dismissed the specifications without prejudice becaus e the governmen t 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 Artic le 134, UCMJ. The military ju dge sentenced appellant to a dishonorable discharge, eleven years conf inement, and re duction to the grade of E-1. The military judge cred ited appellant with 1,142 da ys confinement credit. The convening authority approved the adjudged sentence and the confinement credit.

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises one assignment of error which wa rrants discussion but no relief.

BACKGROUND

Appellant was convicte d of sexually assa ulting his natural daughter, KS. On one occasion, appellant rubbed his four-year-old da ughter’s vagina ov er her clothing while they were clea ning 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 ment al health counselor for the purpose of seeking medical treatment including describi ng an occasion when KS straddled appellant on the couch as he slept and ap pellant “peed” when he awoke; KS told her counselor the appellant had hi s hand down his pants wh en this occurred
and that she had to cl ean it up.

Eventually, when KS was ei ght years old, she made a disclosure to her third grade teacher, Ms. A, indicating that her father touched her inap propriately. At the time of appellant’s rehearin g, KS was fifteen years old and could no longer recall
the name of her thir d grade teacher or making the disclosu re. The government proffered the teacher’s testimon y to present KS’s di sclosure as follow s: “[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 exce ption, Military Rule of Ev idence [hereinafter Mil. R. Evid.] 807. The government then attempted to admit th e victim’s statement for a non-hearsay purpos e - effect on the listener and a prior consistent statement.

The military judge prevented the g overnment from intr oducing KS’s full
statement to Ms. A. Th e military judge, howeve r, ruled as follows:

I’m going to allow only the fact that [Ms. A] can testify
as to whether or no t [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 testim ony to the fact that wh ether 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 notif ied the school counselor and filed a report with Child Protective Services (CPS).

Appellant now argues the mi litary judge’s categorizati on of KS’s statement to her teacher as victim “outcry” ev idence, for which no hearsay exception currently exists, is error. Appellant conclude s that the military judge’s failure to properly classify KS’s statement as a hear say exception within the Military Rules of Evidence materially prejudiced a substantial right of appellant. While we agree the military judge committed er ror by labeling the evidence as “outcry” evidence, we
conclude the error was harmle ss. We find KS’s statemen t to Ms. A admissible for a non-hearsay purp ose. However, we find that even if th e statement was not admissible, appellant suffered no material prejudice to a ny of his substantial rights
as a result of the m ilitary 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. Schlame r, 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 fi ndings of fact are clearly errone ous 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 ju dge erred when he admitted evidence, our inquiry does not end with the finding of er ror. 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 reso lution of the issues of the case.”
United States v. Muirhead , 51 M.J. 94, 97 (19 99) (citation omitted).

The government concedes that the militar y judge’s use of the term “outcry” is synonymous with “fre sh complaint.” See Manual for Courts-Martial, United States

, 1969 (Rev. ed.) [hereinafter MCM , 1969]. Under the early ru le 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, Evid ence (3d ed.) § 1135(A)(1)(d). See also United
States v. Sandoval , 18 M.J. 55, 61-62 (198 4). Over time, this rule has transformed.

The evidentiary rules which appl ied to sexual offenses under MCM , 1969 and MCM, United States (1951 ed.) [hereinafter MCM , 1951], were very different from today’s Military Rule s 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 fr esh complaint entitling the acc used to an in struction onSWIFT—ARMY 20100196

4 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. 37 7 (1955). The MCM , 1969 required that the complaint be made “within a reas onable time after” the sexual offense was allegedly committed, wh ile 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 fres h complaint “is admissib le for the purpose of corroborating the test imony of the victim,” and not for the purpos e 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 fa ct 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 corrobora tion 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, M il R. Evid. 412, p.
A22-36. The notion of fresh complaint, however, wa s 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 “victi m 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 of fered for the truth of the ma tter asserted. Despite the military judge’s ruling on the out-of-date notion of “o utcry doctrine,” the trial counsel specifically offered the victim’s st atement as “effect on the listener” and as a “prior consistent statement.” The stat ement was properly offe red to show why Ms.
A contacted CPS and how th e investigation ensued. 2

Assuming arguendo, the military judge erred and, it was inadmissible hearsay,
we consider whether the mi litary judge’s erroneous ad mission of Ms. A’s testimony caused material prejudice to appellant's substantial rights. We test for prejudice resulting from the e rroneous admission of ev idence by examining ‘“(1) the strength

1 [E]vidence of fresh compla int will be admissibl e 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 artic ulated and deve loped on the
record.SWIFT—ARMY 20100196

5 of the Government's case, (2) the strength of th e defense case, (3) the materiality of the evidence in ques tion, and (4) the qu ality of the eviden ce 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. Appellan t 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 vagi na for ten to fiftee n seconds, thinking it was his wife. KS testified appellant touc hed her on the vagina usin g a “massaging motion” on
several occasions. In add ition, 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 mark edly less substantial. Appellant’s statement that he mistakenly believed he was touchi ng 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 evid ence. While KS made a prior inconsistent statement recanting her story, she explained that she did so because she was s cared. KS’s behavior was also supported by a government expert who offe red expert opinion on child
recantation.

Third, as to the ma teriality 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, includ ing KS’s disclosure to her social worker and therap ist.

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 er ror in this case, and applying the

Kerr test for prejudice, we conclude that a ppellant suffered no ma terial prejudice to any of his substantial rights as a re sult of the milita ry judge's error.

CONCLUSION

On consideration of the entire record and the subm issions of the parties, the findings of guilty and the sentence are AFFIRMED.

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

6 FOR THE COURT:

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