UNITED STATES, Appellee

v.

Donald J. BROWN, Master-at-Arms First Class

U.S. Navy, Appellant

No. 13-0244

Crim. App. No. 201100516

United States Court of Appeals for the Armed Forces

Argued May 14, 2013

Decided July 15, 2013

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

ERDMANN, STUCKY, and RYAN, JJ., and EFFRON, S.J., joined.

Counsel

For Appellant: Lieutenant David C. Dziengowski, JAGC, USN 

(argued).

For Appellee: Major David N. Roberts, USMC (argued); Colonel 

Stephen C. Newman, USMC, Major Paul M. Ervasti, USMC, Captain 

Samuel C. Moore, USMC, and Brian K. Keller, Esq. (on brief).

Military Judge: Kevin R. O’Neill

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Brown, No. 13-0244/NA

2

Chief Judge BAKER delivered the opinion of the Court.

In a general court-martial composed of officer and enlisted 

members, Appellant was convicted, contrary to his pleas, of one

specification of rape of a child, one specification of 

aggravated sexual assault of a child, two specifications of 

child endangerment, and three specifications of indecent 

liberties with a child in violation of Articles 120 and 134, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 934

(2006). The adjudged and approved sentence included confinement 

for forty-five years, reduction to E-1, and a dishonorable 

discharge. On review, the United States Navy-Marine Corps Court 

of Criminal Appeals (CCA) affirmed the findings and the 

sentence. United States v. Brown, No. NMCCA 201100516, 2012 CCA 

LEXIS 448, at *33, 2012 WL 5944972, at *10 (N-M. Ct. Crim. App. 

Nov. 28, 2012) (unpublished).

On Appellant’s petition, we granted review of the following 

issue:

GENERALLY, OUTSIDE THE MILITARY JUSTICE SYSTEM, WITNESS 

ATTENDANTS MAY ACCOMPANY A CHILD ON THE WITNESS STAND IF 

THE PROSECUTION SHOWS GOOD CAUSE AND THE TRIAL JUDGE MAKES 

A FINDING OF COMPELLING OR SUBSTANTIAL NEED. HERE, WITHOUT 

GOOD CAUSE SHOWN AND WITHOUT FINDINGS OF COMPELLING OR 

SUBSTANTIAL NEED, THE MILITARY JUDGE ALLOWED A VICTIM 

ADVOCATE TO SERVE AS A WITNESS ATTENDANT FOR A SEVENTEENYEAR-OLD; THEN THE MILITARY JUDGE REFERRED TO THE WITNESS 

ATTENDANT AS THE COMPLAINANT’S “ADVOCATE” BEFORE THE 

MEMBERS. DID THIS PROCEDURE VIOLATE APPELLANT’S 

PRESUMPTION OF INNOCENCE AND RIGHT TO A FAIR TRIAL?
United States v. Brown, No. 13-0244/NA

3

For the reasons set forth below, we conclude that the 

military judge did not abuse his discretion under Military Rule 

of Evidence (M.R.E.) 611(a) when he allowed the victim advocate 

to sit next to AW during her testimony. 

BACKGROUND

The CCA found the following facts:

The appellant met Ms. RB in July of 2003 and they 

were married in August of 2004. At the time of the 

2004 marriage to the appellant, Ms. RB had four 

children: MMB, a daughter, age 14; MB, a son, age 12; 

AW, a daughter, age 11; and JW, a son, age 8. None 

are the biological children of the appellant.

Ms. RB worked nights shift [sic] and, as a 

result, the appellant was often left alone in charge 

of the four children. During these times, the 

appellant regularly provided the children with alcohol 

and played drinking games with them. The appellant 

also provided MMB with pornography. A few months 

after they were married, while he was home caring for 

the children, the appellant had sexual intercourse 

with AW, who was 11 at the time. The appellant then 

continued to have sexual intercourse with AW over the 

course of approximately the next four years. The 

appellant’s sexual actions with AW followed a usual 

pattern -- the appellant would drink alcohol with the 

children, take AW upstairs under the guise of 

receiving a massage from her, and thereafter have sex 

with her in an upstairs bedroom. At one point during 

the four years AW thought she had become pregnant by 

him and subsequently suffered a miscarriage. The 

appellant’s assaults of AW only stopped when she 

threatened to report him in 2008. Also, while the 

appellant was deployed from November 2006 to November 

2007, he sent MMB prurient email messages. In 2009, 

AW finally revealed the appellant’s sexual molestation 

to her mother.1

 An investigation and this courtmartial followed. 

 

1 AW testified that her mother then sent AW to live with AW’s 

grandparents, but AW “wasn’t allowed” to report the rape to the 
United States v. Brown, No. 13-0244/NA

4

The appellant’s general court martial commenced 

on 20 June 2011. At the time of the trial, AW was 17 

years old and her 18th birthday was mere weeks away. 

. . . .

AW, who was 17 years old at the time of trial, 

testified as a Government witness. Her initial 

testimony began on 20 June 2011; after only 15 

questions by the trial counsel, AW started to cry. As 

the trial counsel attempted the next question, AW 

“burst into tears.” AW continued to cry as she 

struggled to answer more questions. She then stated 

“I can’t do this,” and requested a break. At that 

time, the military judge excused the members and 

discussed with AW the courtroom process. He informed 

her that she should discuss with the trial counsel 

what adjustments she believed he could make to ensure 

her comfort.2 After a short recess, the trial counsel 

requested of the court that AW’s victim advocate be 

seated next to AW during her testimony. The defense 

objected, instead requesting that the victim advocate 

be seated in the gallery. The military judge 

overruled the objection, and placed the court in an 

overnight recess. 

The following morning, in an Article 39(a) 

session, the trial defense counsel renewed his 

objection, arguing that placing the victim advocate 

next to AW bolstered her credibility to the members. 

The military judge overruled defense counsel’s 

objection and stated his intent to allow the victim 

advocate to sit next to AW during the testimony. The 

military judge proscribed any verbal communication or 

physical contact between AW and her advocate. Prior 

 

police at that time. AW testified that it was not until after 

Appellant left her mother that her mother called her “and told 

us that I was allowed to go to the police.” With the help of 

her grandmother, AW then promptly reported the rape to local 

police.

2 During the Article 39(a), UCMJ, 10 U.S.C. § 839 (2006), session 

that followed AW’s crying, AW could not look at the military 

judge and gave only nonverbal answers to his questions. 
United States v. Brown, No. 13-0244/NA

5

to the members’ return to the courtroom, AW was seated 

on the witness stand and her advocate was seated on 

the bailiff’s chair next to AW. Upon the members’ 

return to the courtroom, the military judge informed 

the members that sitting next to AW was “an advocate 

that has been assigned to [AW].” The military judge 

explained to the members that this was “an 

accommodation” he had made and that the members were 

not to interpret her presence as an endorsement of 

AW’s credibility.3 AW then finished her testimony 

without further incident. There is no indication that 

her advocate had any physical contact, verbal 

communication, or otherwise interfered with the 

testimony of AW.

2012 CCA LEXIS 448, at *3-*10, 2012 WL 5944972, at *1-*3

(footnotes omitted).

Before this Court, Appellant argues that allowing a support4

person to accompany a witness on the stand “erodes the 

 

3 The military judge instructed the members that his decision to 

allow the advocate to sit with AW:

should in no way be interpreted by you as an 

endorsement by me or the government or anyone else of 

the credibility of [AW]’s testimony. You will 

evaluate the credibility of her testimony in the same 

manner you will any other witness. . . . This is an 

accommodation I have made. You will infer nothing 

from it.

4 Courts generally refer to an adult who accompanies a witness to 

the stand to facilitate the witness’s testimony as an 

“attendant” or “support person.” Compare 18 U.S.C. § 3509(i) 

(“adult attendant”), and Sexton v. Howard, 55 F.3d 1557, 1559 

(11th Cir. 1995) (“adult attendant”), with State v. T.E., 775 

A.2d 686, 689 (N.J. Super. Ct. 2001) (“adult support person”),

State v. Letendre, 13 A.3d 249, 255 (N.H. 2011) (“support 

persons”), and Czech v. State, 945 A.2d 1088, 1093 (Del. 2008) 

(“support person”). Neither the UCMJ nor the Rules for CourtsMartial (R.C.M.) address such a position; therefore, we use the 
United States v. Brown, No. 13-0244/NA

6

presumption of innocence and violates an accused’s due process 

right to a fair trial” and is therefore “inherently 

prejudicial.” Brief for Appellant at 9, United States v. Brown, 

No. 13-0244 (C.A.A.F. Apr. 11, 2013). Appellant urges us to 

require trial judges to find “compelling necessity” before 

allowing a support person to accompany a testifying witness. 

Brief for Appellant at 15; see State v. Rulona, 785 P.2d 615, 

617 (Haw. 1990), overruled on other grounds by State v. Mueller, 

76 P.3d 943 (Haw. 2003). But see T.E., 775 A.2d at 696 

(“Although these Hawaii cases deem this practice unduly 

prejudicial, they are ‘contrary to the great majority of the 

reported decisions throughout the United States,’ and other 

jurisdictions ‘do not find the authority of these two cases to 

be compelling.’” (quoting State v. Rowray, 860 P.2d 40, 43 (Kan.

Ct. App. 1993))). 

Government counsel argues that the military judge did not 

abuse his discretion under M.R.E. 611 and R.C.M. 801. Brief for 

Appellee at 17, United States v. Brown, No. 13-0244 (C.A.A.F. 

 

generic term “support person.” We also note that while other 

courts have analyzed the use of a parent, relative, spouse, or 

other adult as a support person, in this case Ms. Deweese was 

designated as a victim advocate. See generally Dep’t of the 

Navy, Chief of Naval Operations Instr. 1752.1B, Sexual Assault 

Victim Intervention (SAVI) Program (Dec. 29, 2006); Dep’t of 

Defense Dir. 6495.01, Sexual Assault Prevention and Response 

(SAPR) Program (Jan. 23, 2012, incorporating change 1, Apr. 30, 

2013) (to be codified at 32 C.F.R. pt. 103). Thus, this case 

and this opinion only address the use of a trained victim 

advocate as a support person.
United States v. Brown, No. 13-0244/NA

7

May 1, 2013). The Government asserts that the facts and 

circumstances of this case justified the presence of a support 

person, and the military judge’s member instruction limited any 

vouching effect from the presence of the support person. Brief 

for Appellee at 21-22, 25-27.

DISCUSSION

We review a military judge’s control of the mode of witness 

interrogation pursuant to M.R.E. 611 for abuse of discretion. 

See United States v. Collier, 67 M.J. 347, 353-54 (C.A.A.F. 

2009); cf. United States v. Pope, 69 M.J. 328, 333 (C.A.A.F. 

2011) (while “we afford substantial discretion to a military 

judge’s evidentiary rulings,” greater deference is given when 

balancing is conducted on the record). Similarly, we review a 

military judge’s exercise of “reasonable control over the 

proceedings” pursuant to R.C.M. 801 for abuse of discretion.

See United States v. Satterlee, 55 M.J. 168, 171 (C.A.A.F. 

2001). “For the ruling to be an abuse of discretion, it must be 

more than a mere difference of opinion; rather it must be 

arbitrary, fanciful, clearly unreasonable or clearly erroneous.” 

Collier, 67 M.J. at 353 (citing United States v. McElhaney, 54 

M.J. 120, 130 (C.A.A.F. 2000) (internal quotation marks 

omitted). 

M.R.E. 611(a) provides that the military judge “shall 

exercise reasonable control over the mode and order of 
United States v. Brown, No. 13-0244/NA

8

interrogating witnesses and presenting evidence so as to (1) 

make the interrogation and presentation effective for the 

ascertainment of the truth, (2) avoid needless consumption of 

time, and (3) protect witnesses from harassment or undue 

embarrassment.”5 Similarly, pursuant to Article 36, UCMJ, 10 

U.S.C. § 836 (2006), the President has directed that military 

judges shall “(2) [e]nsure that the dignity and decorum of the 

proceedings are maintained” and “(3) exercise reasonable control 

over the proceedings to promote the purposes of these rules and 

this Manual.” R.C.M. 801(a). The discussion of R.C.M. 801 

explains that “Courts-martial should be conducted in an 

atmosphere which is conducive to calm and detached deliberation 

and determination of the issues presented” and instructs the 

military judge to “prevent unnecessary waste of time and promote

the ascertainment of truth.” R.C.M. 801(a) Discussion. 

ANALYSIS

After reviewing the record and military judge’s findings in 

this case, we hold that the military judge did not abuse his 

 

5 While we do not rely on state authority, we note that a number 

of states have considered the same issue presented in this case 

under their equivalent of M.R.E. 611(a). See, e.g., Letendre, 

13 A.3d at 255; T.E., 775 A.2d at 695 (citing the New Jersey 

version of M.R.E. 611(a) and noting that “[t]he protection of 

children from undue trauma when testifying is an important 

public policy goal”); Czech, 945 A.2d at 1095; cf. State v. 

Rochelle, 298 P.3d 293, 297 (Kan. 2013) (not citing M.R.E. 611, 

but analyzing for abuse of discretion based on trial judge’s 

duty to keep order and control courtroom proceedings).
United States v. Brown, No. 13-0244/NA

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discretion by allowing a support person to accompany AW on the 

stand. This conclusion is based on the following factors. 

First, although AW was not a child of tender years, the military 

judge found that she “was not just crying during testimony, [she 

was] completely unintelligible and unable to speak because she 

was crying.” Moreover, the record reflects an effort on behalf 

of the military judge to proceed without the accommodation of a 

support person. When AW first took the stand, she answered 

trial counsel’s questions in one-word or one-sentence answers. 

After the sixteenth question, the witness “bursts into tears.” 

When trial counsel asked AW if she would be okay, AW continued 

“crying.” After the twenty-first question, the record notes the 

witness crying and saying “I can’t do this.” After a pause, the 

trial counsel asked AW if she wanted a break, and she indicated 

that she wanted a break. The military judge then recessed the 

court until the next morning. While he might have again 

determined following this overnight break whether or not the 

witness could now testify, in our view, he did not abuse his 

discretion in not doing so given the prior efforts to do so as 

well as his observations of the witness the prior day. 

Second, the military judge minimized the risk of prejudice 

to the accused by instructing the advocate not to communicate 

with the witness and by instructing the jurors to disregard the 

presence of the advocate. Moreover, there is no evidence --
United States v. Brown, No. 13-0244/NA

10

such as an admonition by the military judge or objection by 

defense counsel -– suggesting that the advocate failed to follow 

the military judge’s instructions. Nor is there any evidence 

that defense counsel’s ability to cross-examine AW was 

negatively affected by the advocate’s presence.6 

In this case, the witness was physically overtaken by 

sobbing and could not provide information to the court. Where, 

as here, the military judge took reasonable steps to test the 

witness’s capacity to continue as well as steps to mitigate the 

risks of prejudice to the accused, it was within the military 

judge’s discretion to conclude that further attempts to proceed 

with a witness in such a state would “needless[ly] consum[e] . . 

. time,” M.R.E. 611 (a)(2), and do not aid in “ascertainment of 

the truth,” M.R.E. 611 (a)(1). 

CONCLUSION

The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed.

 

6 Appellant urges this Court to require the military judge to 

make formal findings before allowing a support person to 

accompany a witness to the stand. Brief for Appellant at 14, 

16. As noted, we have analyzed the present case under a 

military judge’s discretion pursuant to M.R.E. 611 and R.C.M. 

801. The President and legislature could of course adopt 

specific procedures for courts-martial to follow when allowing 

adult attendants, as Congress has in fact done for federal 

civilian trials. Cf. 18 U.S.C. § 3509(i) (giving children under 

the age of eighteen “the right to be accompanied by an adult 

attendant to provide emotional support to the child,” and 

requiring videotaping of the accompanied testimony but not 

requiring any formal findings by the trial judge).